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Standing Committee on Education and Employment
11/07/2012
Workplace bullying

BOROWICK, Mr Michael, Assistant Secretary, Australian Council of Trade Unions

MORAN, Mr Jarrod Michael, Senior OHS and Workers Compensation Officer, Australian Council of Trade Unions

SCALLAN, Mr Finian, OHS and Workers Compensation Project Officer, Australian Council of Trade Unions

[10:15]

CHAIR: Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. I thank you for your submission. I will ask you to make an opening statement and then we will proceed to questions.

Mr Borowick : I will make a very short opening statement. The ACTU commends both the Australian parliament and the Australian government on the establishment of this parliamentary inquiry. Workplace bullying can ruin lives and careers. Bullying can alter a person's personality. Happy, content and productive workers who are bullied feel isolated, undervalued, downtrodden, inadequate and often helpless Regretfully, some workers who are bullied take their own lives. Others sustain long-term physical or psychological injury.

When I was an apprentice electrician working in the building and construction industry in the late 1970s and early 1980s, bullying was often explained away as a practical joke or as humorous in some other way. Of course, it was anything but funny. Community standards have changed and new laws have been enacted to reflect this change. These new laws have gone some way to addressing the problem. Things I have witnessed would now be regarded as sexual assault. Whilst the traditional focus on physical violence has led to important changes in the way the community deals with bullying, bullying in the workplace is still an everyday occurrence.

The ACTU submission makes several important points. Amongst them: many workers are fearful of the consequences of speaking up about bullying they are experiencing or witnessing. There are fewer prosecutions and fewer successful prosecutions in cases which lack an aspect of physical assault. There is a massive under-reporting of bullying in workplaces and current mechanisms to prevent and deal with bullying need to be overhauled.

The ACTU's submission also makes the point that occupational health and safety regulators need to develop new initiatives to deal with workplace bullying and to better train inspectors. Health and safety representatives should also be given specialist training about bullying. Australia needs a national, consistent approach to bullying laws.

CHAIR: Thank you very much. I want to touch on the comment you made about people not speaking up when sitting by and watching bullying or when experiencing it themselves. What do you think are the barriers to people speaking out and how do you think either legislation or education could respond to some of those barriers to enable people to speak up if they believe it is occurring to them or to someone that they work with?

Mr Borowick : In many circumstances workers are reluctant to speak up about occupational health and safety issues in general. But there is, we think, a particular fear around workplace bullying. People are not sure that raising issues will not be to their detriment. We need to educate workers about the right thing to do, being to speak up. We also need to afford people the protection if they do.

Mr Moran : I think you have to appreciate, as well, that if someone is being victimised in the workplace they need some confidence to be able to speak up, for fear of further victimisation, of censure, of losing their position and those kinds of things. These are all real things that are happening in the modern workforce.

CHAIR: In terms of that protection, does there need to be a legislative protection or should that be an independent process? How do you see enabling someone to speak up? Is it having better trained inspectors, as you said, that can wade through some of this information? How do you see changes happening that allow people to feel that they can speak up? Is it through having independence? Is it through having, as we heard from the previous speaker, a conciliation type situation that remains informal? Someone has also suggested a phone line to get some advice. I am probably asking you to speak off the top of your head, but what do you see as being some structures that could make it easier for people to come forward?

Mr Moran : It is not off the top of our heads at all. This is stuff that we think about all the time and stuff that we are really serious about trying to fix. Giving someone an ability in a workplace to stand up and say, 'There is a health and safety issue here,' is paramount to the work that we do. Workers knowing what they are exposed to, workers knowing how to deal with what they are exposed to, is paramount to the job of the ACTU. The model work health and safety laws establish mechanisms for consultation in the workplace. There is a good start. We need inspectors who are educated and confident in enforcing those consultation provisions. We need a workforce that is confident in enforcing those consultation provisions as well. Those representative structures in the workplace are vital for this to work properly.

Sometimes those things are going to break down. Sometimes they are not going to work. That is where we see that there can be a forum to try and resolve these issues. We have not turned our minds as to whether or not it is conciliation, but certainly we think there needs to be some step between a breakdown in the workplace and the more formal aspects of how you resolve that through a court system or something. There needs to be something in the middle. Conciliation is perhaps one model, some mediation or some recommendation by an inspector that something else can happen are other things that could be used in this space.

Mr Borowick : If you notice any bullying, you have to recognise that in some circumstances workers feel that they are to blame for the behaviour that they are receiving. It is for that reason they are reluctant to speak up. Somehow they feel they have contributed to the circumstances in which they find themselves. So it is about educating people about what is bullying and why it is important to speak up.

CHAIR: So from your perspective you see the occupational health and safety legislation, if it is enforced, and the consultative procedure as being the correct way for bullying to be dealt with. There have been some suggestions that there could be something available in the Fair Work Act as opposed to the health and safety legislation. That is something that has been put to the committee. If you do think it should be in the occupational health and safety act, does there need to be a definition in the harmonised legislation? Does there need to be a definition or some information in the regulations around the area of bullying?

Mr Borowick : We do not preclude a new provision in the Fair Work Act. We do not rule that out. The point you have made is that there is existing legislation around both health and safety in the workplace. It has a regime of inspectors and also health and safety reps, which are an important facet of maintaining a safe and healthy workplace. So those structures already exist. We do not rule out the option of having a special definition—presumably a consistent definition—both in the health and safety acts and the Fair Work Act. We would like to explore the option of Fair Work Australia skilling up. Obviously it deals with unfair dismissal. Bullying can be an aspect that arises in many unfair dismissal situations. So a specialist strand within Fair Work Australia is something that we are open to. This could involve both tribunal members and the unfair dismissal conciliators receiving specialist training. It could also involve the establishment of a special purpose panel within Fair Work Australia. But whatever solution is arrived upon, it has to include the health and safety regulators.

Mr Moran : If I could just add a couple of things there. The harmonisation of the health and safety laws has been an important thing which we have been involved in. We entered that process through Safe Work Australia with wide eyes. We thought perhaps that we could bring all the ships up to the same level. It did not actually turn out that way for us, and we are disappointed with some of the aspects of the harmonised laws. We think there can be some improvement in the harmonised laws, and psycho-social matters is one part of that. We maintain that a regulation on psycho-social issues is important through the health and safety regime. We have said that in our submission. We think it can be improved on and that it will form a basis for this. For this to remain a health and safety issue, there are other mechanisms, as Michael said, through Fair Work. We can talk about solutions, but primarily this is a health and safety issue and there is a framework—although not a framework that we are completely happy with—through the harmonised laws, which we think can deal with this. But you need the backup of the training, the education and the confidence throughout the consultative processes that someone can raise these issues and they will be genuinely dealt with.

CHAIR: You mentioned its importance in your submission. I can see how it fits into the occupational health and safety legislation of prevention and early intervention. Do you find that through the current regulators in the states and the territories that that is occurring? I get the sense from your submission that you do not necessarily think it is occurring. You have mentioned the better skilled inspectors. How do you see the ability for an earlier response? We heard yesterday that WorkCover New South Wales has only ever prosecuted one bullying case, yet there are 5,000 accusations, complaints et cetera. How do you see earlier intervention actually working?

Mr Scallan : Clarity is needed around the roles of inspectors and a clear definition of what encompasses bullying behaviour is also needed. That is a very necessary path in addressing those issues. You also need a very strong educational focus in order for inspectors to address these issues. Part of the problem, as I understand it from what I have read in relation to the VWA bullying report that came out in 2007, was that there was ambiguity and complexity in dealing with bullying behaviour. There was a lack of understanding on the part of inspectors as to how they should approach bullying. In certain instances it was suggested that some inspectors did not even regard bullying as a workplace hazard. So a major education focus is needed to address those issues and also to provide clarity around them in terms of how inspectors perform their function in the workplace.

Mr Borowick : The reason we have called for regulation is that we see bullying as a workplace hazard and that it should be dealt with like many other workplace hazards—whether it is an asbestos hazard, a fatigue hazard or any other hazard—which have regulations. We think it needs to be honed, and the development of a regulation will do that. Traditionally, it has been dealt with through occupational health and safety law. Victoria has enacted amendments to the Crimes Act, and now there is this issue about whether or not there should be amendments to the Fair Work Act. So I suppose how those three jurisdictions cross over would need some exploration. We would like to see a coordinated approach. I think Jarrod mentioned that Fair Work Australia has been developing a position with the employers and us. So it is a matter of appropriate interrelating.

CHAIR: My question then—and I am not sure whether you are to be able comment on this—is about the interaction between the commonly known Brodie's law and the occupational health and safety laws. The Crimes Act obviously captures the very pointy end of it and raises its profile. Discrimination law will catch it if it is on the basis of sex or race, and then you have got the health and safety act. It might be a bit too early to tell how the amendments to the criminal legislation and the health and safety legislation will interact.

Mr Borowick : The proponents of so-called Brodie's law would argue that it goes beyond workplaces, whereas the Fair Work Act and the occupational health and safety acts are workplace specific. So I suppose the Crimes Act could deal with bullying in a non-work context.

CHAIR: I am not aware of any cases that have come before that particular law, so it is hard to see if it were in the workplace how those two would interact.

Mr Borowick : I am not sure whether any consideration was given to how they might intersect. The Victorian government has just announced it. Victoria has not enacted the harmonised legislation; it has enacted the model Work Health and Safety Act. The amendments to the Crimes Act were not through that process of harmonising. We were not consulted about it. It is probably too early to tell what the effects of that legislation will be. Certainly, if there were to be amendments to the Fair Work Act or changes to the model act, we would need to consider how they related to what has already been done in terms of the Crimes Act in Victoria and whether or not the Victorian Crimes Act model is the one to be reflected nationally or whether it can be modified or improved upon.

Mr RAMSEY: You just touched on the model code of conduct, which is at about halfway at the moment with the COAG agreement. Are you telling us that you would like to see that as an operating law rather than as a code of conduct? And do you support the way that it is written?

Mr Borowick : We would like to see the development of a regulation specifically dealing with it.

Mr RAMSEY: More than a code of conduct?

Mr Borowick : Yes.

Mr RAMSEY: You support the way the code of conduct is written at the moment?

Mr Moran : The code is still being developed. It went out for public comment around Christmas. It has not come back to Safe Work Australia yet. Public comment has been received, and public comment is being considered, as we understand it. I think there is a meeting at the end of this month to discuss a new draft and the public comment response. We have not seen the most recent draft, but we certainly did not agree with what was put out at Christmastime.

Mr RAMSEY: That was the question I was asking.

Mr Moran : We hope the public comment might have fixed up some of the issues that we had with it.

Mr RAMSEY: That one will unfold as it goes along. We will follow it. ACCI were in here in morning. They talked about a situation that some employers find themselves in, which they call double jeopardy, whereby an employer identifies a worker who is a bully. The employer may have taken steps and then decided that this bully has to go, but then of course they are open to unfair dismissal and other clauses under the Fair Work Australia Act and thereby leave themselves open to action coming back the other way. There is a review of Fair Work underway. Could you recommend a way forward so that we could give employers some kind of surety about the way they are handling their workforce, if, indeed, they are taking positive action to try and get rid of bullying?

Mr Borowick : We would not want to allow employees to be dismissed on the basis of frivolous or false allegations about workplace bullying; but then, of course, we would not want to be defending people in situations where their bullying has been proven. So I suppose we have settle on a middle path, something that is appropriate. Just because someone is accused of workplace bullying does not necessarily mean that they have done it. If there were to be exemptions or something or other, we would have to work through the courts.

Mr RAMSEY: You can see how difficult that makes it for employers, though. They have to have a cast-iron case, something they feel they can prove in a court of law, basically, before they are in a position to dismiss.

Mr Borowick : Yes. We are not going to support people who have done the wrong thing.

Mr RAMSEY: The evidence that we heard this morning was that very few of these cases where there is a counterclaim—where employers have dismissed someone they perceived as a bully—actually get through to a court. In fact, they are settled out of court. And one of the complaints employers have had about unfair dismissal laws, of course, is that, in the end, this is just a way of manufacturing go-away money.

Mr Moran : I understand what ACCI are saying, but they talk about individual cases and it is difficult for us to drill down to that level. In our submission, we ask: if there is a systemic problem, not just in a workplace but across our community, how can we deal with those things? We think the mechanisms in the work health and safety legislation provide some way of dealing with that. It is difficult to rein in these types of things. Psychosocial issues are really difficult. But there is a pandemic going on out there and we need to handle it somehow. One way, we are suggesting, is through the health and safety legislation. We say there needs to be more consultation. We have been told that people who gave evidence prior to us spoke about a conciliation process. I do not know that we need to run straight to that, but perhaps there is some appropriate point between the consultation processes in the workplace to try to resolve these disputes and what an inspector is able to do—perhaps some conciliation, perhaps mediation, perhaps some other place.

As Michael said, we cannot defend people who break the law. If you have broken the law, you have broken the law. But we also cannot say that dismissing someone to get rid of the problem is how you deal with these things either. So we are more than willing to talk about that middle bit, if I could call it that.

Mr RAMSEY: It is interesting you say there is a pandemic of workplace bullying out there at the moment, and perhaps there is. Michael said in his opening statement that it is not as bad as it used to be, when he was an electrical apprentice. Is that the thinking, though—that things are actually getting worse in the workplace at the moment, rather than getting better? I would have thought, by and large, that people were more aware of these issues than they were, say, 10 years ago, but perhaps I am wrong.

Mr Moran : Well, health and safety is a funny thing. When you make people aware of a hazard, that is often when they realise they are exposed to it. It is not until you make them aware of those things that they realise: 'Hang on, I shouldn't be dealing with this friable asbestos. I've been told there's the possibility it can kill me, but this stuff is around us all the time.' So is it getting better or is it getting worse? I think, if you shine a spotlight on something, these things come to the fore and people are perhaps more confident in talking about what is happening to them.

The evidence that we have—and it is in our submission—which was also the finding of the Independent Inquiry into Insecure Work in Australia, is that modern work arrangements are sort of contributing to bullying behaviours.

Mr RAMSEY: Yes, I noticed those bits in your submission.

Mr Borowick : The point I made, which may be worth repeating, is that we also believe there is massive under-reporting of bullying. It may or may not be on the rise but, in any case, many people are just putting up with unacceptable behaviour. I assume that this inquiry was established because there is recognition that there is a problem out there and it needs to be dealt with.

Mr Scallan : I will just add to that as well. There are 2.2 million workers now engaged in casual work, and a significant feature of casual work and one of the major issues raised in that report is the fact that casual workers face real barriers in raising health and safety issues for fear of repercussions, fear of loss of shifts and ultimately for fear of losing their jobs. So it is a major issue. As a class of people casual workers are the most likely to be injured and the least likely to speak up about their health and safety issues.

Mr RAMSEY: Thanks.

Mr SYMON: Michael, I would like to ask you about cultures in workplaces. I must admit straight up that I too was an apprentice electrician in the early 1980s. What you described is accurate, in my view, from obviously a different side of that industry. Is it the case that community attitudes have moved on but that the attitudes and cultures of some workplaces have not moved as quickly?

Mr Borowick : Yes. I think at the time that we were in the industry and shortly thereafter there were a number of high profile prosecutions about behaviour towards apprentices and it was often a physical circumstance. That is not as prevalent as it once was. Now we need to move onto other forms of workplace bullying and address those circumstances—intimidation, for instance.

Mr SYMON: Exactly. Those other forms, I suppose, have always been around as well but are more readily identified these days. How is a workplace culture going to change without input from government through regulation or whatever it may be? Is there any other way that can change, in your view?

Mr Borowick : The regulators have an important role to play but there is a lead agency—Safe Work Australia. There are other things that the Australian government, the Australian parliament, can do to lead on this issue such as education campaigns. You have got a whole number of tools available to you.

Mr SYMON: The issue that comes to me here is that, although you have spoken about the very high end—what would be regarded as criminal assaults—so much of what we have seen in submissions is not at that end but it is still causing great damage to people in their workplaces. What I would like the committee to finally come to when it does its report is recognise a way of being able to deal effectively with the issues that arise in workplaces with regard to bullying that are not out at the far end but are the day-to-day things that concern the thousands of cases we hear about that are not proceeded with. Is there a suggestion from the ACTU for a better way to do that?

Mr Borowick : We need to find a better way, and I think there will be benefits to the economy in doing so—the workers compensation schemes.

Mr Moran : In our submission we suggest a regulation in which we say that, if there is a focus in the workplace and a duty on employers to deal with these things, they need structures in place to be able to do that. Workers also need to be able to recognise when they are at risk. The education stuff is really important but we also see a role for the regulators to get in there and say, 'You have a duty to do some things in this workplace and one of them is to make it healthy and safe and that includes mental health.'

Mr SYMON: One of the things that I picked up in the verbal submission before was the training of OH&S reps in recognising workplace bullying and obviously what can be done about it. What type of training, to your knowledge, is provided to occupational health and safety reps in that area? Does anyone do that?

Mr Borowick : None that I am aware of. Health and safety reps have to deal with a whole manner of things in areas which they probably do not have a great familiarity with. They do get a statutory entitlement to five days of training after first being elected—one day thereafter. There is only so much you can cover in that time, so you cannot be an expert on absolutely everything—chemicals, asbestos and bullying.

Mr SYMON: Of course not.

Mr Borowick : People should have the option of additional training or the right to additional training on something like bullying; we welcome that. You asked about how we could move forward from here. We do not see the regulation being necessarily restricted to a coercive approach. It can deal with other sorts of things around training and education. There might be triggers within the regulation. If it becomes an issue in a workplace then the issue might trigger further training.

Mr SYMON: This question is out of the blue but I am happy to take any answer on notice. Are you aware of there being greater incidences of reported workplace bullying in particular industries? If you are, could we get some information on it, please?

Mr Scallan : With certain employees and within particular industries, again particularly regarding apprentices and apprentice employees, indentured employees, who are receiving on-the-job learning, yes, there is. We have noticed that in the Victorian WorkCover prosecutions from 1999 to 2005 of over half of the successful prosecutions that went through at least 25 per cent involved apprentice employees. Half of those prosecutions involved young or apprentice employees. Safe Work Australia have identified in the work-related industry survey that casual employees and apprentice employees have double the rate of injury than full-time or fully qualified employees. So those industries that utilise particularly apprentices have a higher rate of injury in relation to bullying and/or physical injury.

Mr Moran : When we were putting our submission together we tried to look at industries or occupations that may have a prevalence of this and found, apart from what Finn has just told us, that there was a lack of data. You will see in our submission that we are calling for more data just to increase our knowledge about this stuff. We will certainly take that on notice and see if we can dig up anything else that can be of use.

Mr SYMON: Thank you.

Ms O'NEILL: Yesterday afternoon in Sydney we heard some personal impact statements and I expect we are going to have some this afternoon. You move in and out of a lot of workplaces and you talk in your submission about psychosocial hazards. I am interested to hear from you about what you think are common psychosocial hazards that are occurring that would be leading to complaints about bullying.

Mr Scallan : Certainly occupational violence, work overload and fatigue can all impact on the development of bullying behaviours within work. When you look at the broader organisation of work, organisational change particularly in the last 10 years as a result of restructuring or downsizing or any of those issues has a major impact on health and safety of workers. If you are downsizing, for example, there is obviously more work to be done by fewer people, which increases the stress on those people to perform with more limited resources. So again our call for regulation would include a broad psychosocial regulation to include not just bullying but the broader psychosocial hazards associated with the original stressors such as fatigue and to address organisational change and how to positively deal with that change.

Ms O'NEILL: One of the things in your submission argues that bullying behaviour should be actionable without proof of damage or injury. How do you see that being managed by regulation?

Mr Scallan : I think that is part of the problem, the issue in terms of workers compensation and the actions of the inspectorate. In one sphere you have workers who are receiving workers compensation for injuries that have been unsubstantiated by regulators in terms of actually determining those injuries. We think that is a major problem. But the fact is that the only prosecutions that are going through are those instances involving physical violence. We think that inspectors should be equipped to be able to enter a workplace using review tools to determine what the psychosocial environment of that workplace is like and then to be able to act accordingly. We think that if there is incidence of ongoing, prolonged, systematic bullying that they should be able to be identified and be acted on before they escalate into what could be physical violence or even worse, like injuries.

Ms O'NEILL: Do you think that the data is sufficiently developed at this point that such a checklist could be created for an inspectorate? And, if it were available to an inspectorate, then obviously it would be available to employers and employees.

Mr Scallan : I will probably have to take that question on notice, but we are looking at what is happening overseas and we know that there are tools they are using. So we will take that question on notice and report back to the committee with that.

Ms O'NEILL: Thank you. We asked for some evidence from the international sphere yesterday, and I think you might be able to help us with that.

Mr Scallan : Again, we are happy to supply that at a later date.

Mr Borowick : In terms of the collection and analysis of data, Safe Work Australia is reliant on the cooperation of the states and territories, which sometimes is not forthcoming. Ideally, we would like to see Safe Work Australia have an independent capacity to undertake research. However, in the current budgetary climate, I think Safe Work Australia is struggling with its funding, and perhaps this committee might see fit to make a recommendation about adequate funding for research in this area.

Ms O'NEILL: Thank you.

CHAIR: Thank you very much for appearing before the committee today. If there is any extra information you can provide, either related to what has been mentioned in the hearing today or anything you feel would be helpful to the committee, please do not hesitate to send it through to the secretariat. The earlier we get it, the more time we will have to consider it. So, while there is no time frame on it, the earlier we get it, the better. You will be sent a transcript of your evidence, to which you can make corrections of grammar or fact. Thank you.

Mr Borowick : Thank you.