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

WINDHOLZ, Mr Eric, Associate, Centre for Regulatory Studies, Faculty of Law, Monash University

[10:52]

CHAIR: I welcome our next witness, Mr Windholz, from the Centre for Regulatory Studies at Monash University, to today's hearing. Although the committee does not require you to give evidence under oath, I should advise you that this is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. You have provided us with a submission, and we thank you for that. Would you like to make an opening statement, and then we will proceed to questions.

Mr Windholz : Great. Thank you to the committee for inviting me to appear. I do not appear before the committee to advise you on how best to address workplace bullying. Indeed, it is the Centre for Regulatory Studies' submission that, while there will be many good ideas presented to the committee—and this morning I have heard several—as to how we can better prevent workplace bullying, what the right and best approach is remains contested, and that is evident from some of the testimony today. It is the crux of the centre's submission that, while there is an understandable temptation to recommend a single, uniform, national approach to such a serious social and workplace issue, that temptation should be resisted. Before I go into my reasons for reaching that conclusion, I just wanted to share a little bit about my experience.

While I am presently an associate with the Centre for Regulatory Studies, and teaching part-time while doing a PhD on the harmonisation of occupational health and safety laws, prior to joining Monash University I was the General Manager of Strategic Programs and Support with WorkSafe Victoria, the state's occupational health and safety regulator. In that role I was responsible for overseeing the development and implementation of programs to address the most prevalent and costly causes of workplace injury, of which workplace bullying is a significant one. In particular, I was responsible for developing and implementing responses to recommendations made by the ombudsman and reports by Gregory Lyon SC in 2007 which led to the creation of a dedicated bullying inspectorate.

Through these experiences I have reflected on the challenges that are presented to regulators in dealing with workplace bullying and on the opportunities which our federal system of government presents for addressing complex and contested issues. My conclusion is that workplace bullying is an issue that would benefit from a regulatory environment that is both flexible and adaptive to new and changing circumstances and that retains the capacity to experiment, innovate and learn. Specifically, it is my submission that the primary regulatory responsibility for addressing workplace bullying should remain with the states and territories, where different approaches can be trialled, lessons learned and shared, and a cycle of continuous improvement established. The Commonwealth's role should be to support, fuel and energise this process.

I appreciate that this might sound counterintuitive. Surely an issue as significant as workplace bullying, which the Productivity Commission estimates could cost up to $36 billion, warrants a national approach. However, for the reasons set out in the written submission, and which I will briefly outline now, I do not think that is the case. I think it has been demonstrated in the evidence that the committee is receiving that while bullying is a significant social and economic issue, it is also technically complex and industrially sensitive. It is an issue on which there are genuine differences of opinion—as to what the definition of workplace bullying should be, its causes, how to prevent it from occurring and how best to support victims and deal with perpetrators.

As I said, the committee will receive many good ideas, but I would suggest that very few of those ideas will have been tested in the field, let alone rigorously evaluated, and the issue of data has already been raised several times. It is with respect to those issues that I believe that Australia's federal system of government is best suited. One of the benefits of federalism is that it is a generator of innovation, experimentation, creativity in policymaking. There are numerous examples of social and legal innovation that commenced in one state and was then improved upon in other states—everything from road safety, tobacco prevention, environmental protection, antidiscrimination and equal opportunity. We already seeing those benefits being applied in the area of workplace bullying. Queensland was the first jurisdiction to trial a dedicated team of specially-trained inspectors in 2004. Victoria picked that up, and other jurisdictions are experimenting with that model to various degrees. We have seen Victoria introduce the amendments to the Crimes Act, Brodie's Law, and we are seeing other jurisdictions mooting the implementation of similar laws and, indeed, they are also being mooted at the national level.

We are also seeing similar processes of evolution and diffusion through guidance material, workshops and the use of alternative dispute resolution mechanisms. So we have currently a number of different models being employed for addressing the problem, from which lessons can be learned and improvements made.

I do recognise, though, that there are some who see state-based differences as a problem. Larger businesses that operate across more than one jurisdiction in particular will complain of the cost that may be incurred by having to comply with multiple state regimes. However, I do encourage the committee to weigh any costs associated with having to so comply with the welfare-enhancing effects, to view state-based differences not as a weakness but as a demonstration of the strength of our federal system operating as intended—a system that encourages responsiveness to local needs and circumstances, experimentation, creativity and learning.

In conclusion, I refer the committee to the comments of Productivity Commission Chair, Gary Banks, who makes the point that a national approach is more likely to be warranted where the best or right approach to an area of regulation is relatively well known and accepted and the scope for innovation is small. Should the evidence to this inquiry confirm that there is no consensus about what is the right or best approach, then great caution should logically be exercised before committing to a single national approach.

Having said this, I am not suggesting that there is no role for the federal government. On the contrary, there is an important and valuable role for the federal government to create, with the states and territories, the institutional infrastructure to support, fuel and energise the cycle of innovation, experimentation and learning. This could include the setting of national targets, monitoring performance against those targets, with or without reward payments, as well as funding research and facilitating the transfer of knowledge and practice among jurisdictions. Indeed this inquiry, in which knowledge will be transferred and different jurisdictional approaches compared and contrasted, is an excellent demonstration of our federal system of government in operation, for which both the Minister for Employment and Workplace Relations and this committee should be congratulated.

CHAIR: While I recognise that you have clearly said that a less centralised approach to solutions is important, I wanted to ask you about the definition, because that seems to have come up continually as a problem, with different definitions in different states and territories. It leads to confusion, with people presenting evidence to this committee concerned that everything from, 'She said this about me,' or 'He said this about me,' all the way up to the most serious incidents being labelled as bullying. Of course, there is a huge amount of grey area in there and the lack of a definition that can be relied on easily is causing a lot of confusion and perhaps leading to the mislabelling of things that are or are not bullying. While I understand your comments about the solutions having different approaches, do you see value in a national definition that helps us identify what workplace bullying is?

Mr Windholz : Let me just say that I am not sure that any definition will prevent the confusion that is occurring, whether it is at a national level or at a state level. I think that what we heard this morning, which I suspect you will continue to hear, were different perceptions about elements of the definition. There seems to be a relative consensus about the core of the definition—repeated, unreasonable, sustained behaviour—but I think issues around what I would call the exceptions, such as legitimate management practices and performance management, will occur.

So I am not sure whether any definition will do it, but nor am I sure why a definition set at the national level will have more impact or give more clarity than alternative definitions set at the state level. It seems to me that the majority of workers work for businesses that operate in only one state. Indeed, 97 per cent of businesses operate in only one state. I do not see the logic in arguing that a national definition will somehow bring clarity that a state definition would not.

Mr RAMSEY: Thanks for that very spirited defence of federalism! Obviously you have done a lot of work in this area, so I am interested in what you have found in overseas comparisons. We look at the US, for instance, as being 58 different entities which have probably all developed their own workplace laws. I am not across the issue. We may also compare Australia with somewhere like Europe. Can you put this in an international context for us, explain how Australia compares and give us your reflections on federalism?

Mr Windholz : There are a number of jurisdictions that are comparable. Canada is probably the most comparable, where OHS regulation remains very much a state responsibility with very little national involvement. You then go to the EU, where there has been a very strong push for harmonisation as part of the common market development. In the US it is a bit of a mix. The federal occupational health and safety regulator will proclaim national standards in particular areas and states are free to determine how they meet them or exceed them. What I would say, though, is that if you look at performance data, regardless of the system, Australia performs very well against other federal systems. So I would argue that Australia's state based regimes have not performed worse; indeed I would argue they have performed better than many other systems, unitary or federal.

Mr RAMSEY: Could you give us an example of a national system that you think has become inflexible because it is a national system? Bear in mind that most of the parties around the table in this game, including governments, large businesses and the union movement, are all in favour at this stage of getting some kind of national consensus on all the OH&S issues. There are some hang-ups on how we get there but, by and large, everybody is on the same page saying we do need a national system, and you are telling us that we should be very careful about it unless we know we are going to world's best practice.

Mr Windholz : If I look at the harmonisation of occupational health and safety laws which is going on, the concept of harmonisation is a very seductive concept. It is very hard for people to say: 'We don't want more harmony. We don't want to cooperate.' However, when you move from the rhetoric to the detail that is where the differences emerge. What we have experienced in Australia is that, as we have moved from the rhetoric of the label to the policy particulars, winners and losers have been identified. When you harmonise, you have to set the level of harmonisation and invariably in particular states there will be winners and losers. In some states, the workers will perceive themselves to have won if the level of protection is raised, but employers in those states will perceive themselves to have lost if they believe they now have to incur a higher cost to meet that standard. The corollary is true: workers with higher standards might feel that they are losing protection; employers will feel that they are gaining as a result.

Indeed, the regulatory impact statements and work by the Productivity Commission have established that, while larger employers who work in multiple jurisdictions are invariably winners, smaller employers that work in one jurisdiction are invariably losers. Therefore, what I think you see is the illusion of the harmonisation unwind as you get into the details. Therefore, what we are ending up with with occupational health and safety in Australia is greater harmonisation by virtue of the process we have gone through but falling way short of the ideal of uniformity that people embarked on in the agenda.

Mr SYMON: In the model that you propose, what is the driver to take what I will call a recalcitrant state further along the path of dealing with what this committee is looking at? Bear in mind that there is no state system that looks at it directly at the moment; it is always an offshoot of its workers comp or OH&S responsibilities. It is not something where I see a winning or a losing state out of it at the moment because there is not that great body there. In a system where each state takes on a new responsibility, where does the Commonwealth get to drive that—hopefully to some point that this committee comes out with a recommendation that says this is where we should be looking at things going?

Mr Windholz : I suggest the committee look at the occupational health and safety strategy that existed from 2002 and that finishes this year in 2012. It is a national occupational health and safety strategy where Commonwealth, state governments and indeed the major employer and union bodies signed up. It was the first national strategy that had that tripartite involvement. First of all, the strategy identified priority target areas. It then set targets for reductions in claims, reductions in injuries and fatalities for each of those priority areas, and a monitoring system was put in place to monitor performance against that. I suggest that that system triggered a competitive zeal amongst the states. We saw a series of reviews of state occupational health and safety laws, where states modernised their laws in an attempt to meet those targets. I suggest a system whereby there are national targets, there is monitoring of the states' performance against those targets either with a name-and-shame scorecard, maybe balanced with some form of incentives.

Mr SYMON: States like incentives.

Mr Windholz : Possibly, or a name and shame, whereby you incentivise states in effect to compete against each other to improve in those areas.

Mr SYMON: As I understand it, you are putting forward what in other areas would be called a national partnership model where the Commonwealth puts some financial reward up for those states that perform best in a particular area?

Mr Windholz : I say it is an option. I do not think it is necessary. The financial reward for the states is also delivered through their workers compensation systems. I think that is an element of the regime that probably has not been discussed a lot this morning. But it is the workers compensation system that is actually there to compensate and rehabilitate workers who have suffered psychological or physical harm as a result of bullying. To the extent to which the scheme can get that under control, there is a financial dividend there as well.

Mr SYMON: That, of course, is always a longer term measurement. It takes some time to put in a change with a workers comp scheme and actually see a dollar return. Is it the case that there needs to be something at the front and something to come later on?

Mr Windholz : Possibly. I would not underestimate the power of the premium signal to employers in their workers compensation premiums. Victoria has a system whereby there is effectively a three-year experience cycle, so they feel the change pretty quickly.

Ms O'NEILL: We have not heard an awful lot about the benefits of a bully-free workplace. You have come to it, I guess, with those comments about WorkCover and workers compensation. One of the things that concerned me about what you were talking about was competition between systems. I think one of the big pushes for federal intervention is that Australians believe that they should have the same rights wherever they work—not just within a state but if they move between one state and another. Harmonisation for things like skills and training is critical for people who come to visit me who have a qualification in New South Wales that is ineligible for application in Queensland. When we are talking about a major cultural reform, we are not talking about a city or a single workplace; we are talking about an entire country. In light of this being a major social development, not just a systems response, what do you see would be lost by the method you are advocating?

Mr Windholz : I do agree that what we are fundamentally talking about here is cultural change and what levers that government can pull to facilitate, encourage and speed up that cultural change. I would also suggest that, while Australia looks homogenous, there are significant differences. We have members here from different states and I dare say if we had members here from Western Australia, the Northern Territory and Tasmania they would probably say there are differences in their states as well. I am not sure why a nationally coordinated cultural program is expected to have greater success than several more locally tailored and managed cultural programs would have.

Ms O'NEILL: Are they mutually exclusive?

Mr Windholz : Not necessarily. If we look at tobacco control, for example, where the Commonwealth takes a very active role, we also see that supplemented with several state based programs, and we have seen tobacco control legislation across the country move at different speeds as states have experimented with a restriction. The sky has not fallen, businesses claims that the world will end have not been proven, and other states have started.

CHAIR: I think that as elected members we certainly get talking about having the same rights no matter where you live in the country. One of the issues that was raised in New South Wales is that under workers compensation there is a threshold that can be met to look at negligence in terms of a bullying case or any other occupational health and safety case and there is a right under common law. Workers compensation legislation has put that at a threshold of, I think, 15 per cent permanent damage to your body. It is my understanding that in South Australia that ability to pursue negligence under common law is completely ameliorated by the workers compensation legislation. So, depending on where you live, there is a different level of injury that you must pursue. How would you respond to an average Australian saying, 'The threshold should be the same, no matter where I am, to be able to have that right under common law to pursue my claim'? You would seem to be advocating to let the states manage that, but I would say that people I speak to would believe that that threshold should be the same no matter where you live in a country that has a federal government.

Mr Windholz : I would say two things. First, I do support minimum thresholds. I think everyone should have the minimum basic rights: whether it is a right to compensation or it is a right for a bullying free workplace or a safe workplace, people should have the same minimum rights. I think, though, equality can be used as a double-edged sword, because if we say that everyone must have the same rights without deviation then we are denying people in each locality the right to campaign for higher rights, the right to be able to use their own initiative and innovation, their own leverage for want of a better term, to negotiate for higher rights. Equality is a great sounding concept and I support it as a concept, but I would not support it as a concept if it denied people the ability to secure for themselves higher rights. What we have seen over time, and I think it is part of our history both industrially and in health and safety, is that one group are able to negotiate a higher right, that becomes the target to which all the other groups aspire and eventually everyone moves up to that higher right and then someone else goes higher again and we move up. To have equality as an absolute standard rather than the minimum threshold can be counter-productive in the long term.

The second point I would say from a compensation system in applying that reasoning is that if they are injured at work people are entitled to receive a level of compensation or income to sustain a reasonable lifestyle during the period in which they are being rehabilitated and prepared to re-enter the workforce. How we deliver that level of income to be able to maintain their lifestyle can be delivered in a number of different ways. Sometimes it can be done through direct income support, through the payment of workers compensation payments, or it can be done by giving people the right to sue. But again I would argue that as long as people have a minimum threshold that is common, why can't workers in one state if they are able to do so negotiate for a higher level of compensation?

Ms O'NEILL: Just the definitional questions about bullying: do you really think they are sufficient or how could they be improved? Legally what should be considered bullying?

Mr Windholz : I am probably more of a pragmatist on this. My view is that I think it is important that we have a definition and we work with it rather than try to attain the perfect definition, because I am not sure there is a perfect definition that everyone will agree with. What is more important is that we have a definition and we work with it, but importantly, and I think this has been mentioned, that we monitor and evaluate how it is working and then let the definition evolve. I think sometimes we can make the perfect the enemy of the very good. Indeed, I think a lot of the definitions I have heard today are very workable definitions. I particularly like what I heard from Moira Rayner. I do not think I can give you the perfect definition and I do not think anyone can. I think it is more important that we take a definition and work with it, monitor it and evaluate it.

Having sat here today and heard a number of questions about the data issue, at least WorkSafe Victoria, which is the state regulator I worked with, has a wealth of data. Whether or not that data is getting out I do not know, but the question was asked as to which industries are more prevalent. The data is there. The question is whether we can use the data and work with it.

CHAIR: I think there are a number of issues around the data. One is that the states are not in a timely fashion making it available to the Commonwealth to collate that information. That is my understanding; I do not know how true that is. That is one of the things that was raised with us. Unfortunately it comes back to the corporate incentive to get that in a timely fashion. That has been an issue.

We have run out of time. Thank you very much. If there is anything further you would like to provide to the committee, please do not hesitate to do so. You will be sent a copy of the transcript of your evidence to which you can make corrections of grammar or fact. Thank you.