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Standing Committee on Education and Employment
18/07/2012
Workplace bullying

BEHRENS, Mr Nick, General Manager, Advocacy, Chamber of Commerce and Industry Queensland

EAST, Ms Clare, Education and Training Policy Adviser, Chamber of Commerce and Industry Queensland

McGREGOR, Mr Michael, Policy Analyst, Chamber of Commerce and Industry Queensland

[10:26]

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 the proceedings of the respective houses. I invite you like to make an opening statement before we proceed to questions.

Mr Behrens : As the state's peak business organisation, the Chamber of Commerce and Industry Queensland is supportive of strategies and initiatives encouraging the prevention of workplace bullying. CCIQ recognises that workplace bullying is an important social issue that can have lasting impacts on the Australian community. While CCIQ is supportive of the inquiry and of the identification of strategies to enhance awareness, it does not believe that the incidence of workplace bullying within Queensland workplaces warrants the implementation of further legislation in this area.

CCIQ considers that there is sufficient regulatory framework in place to prevent workplace bullying and effectively address it where it does occur. Legislating further would simply add an additional or duplicate layer of regulation in the workplace, and would be confusing for both employers and employees. Mechanisms available under the current framework address the broad range of behaviours and provide for awareness, redress, punishment and compensation. We note that bullying often involves a range of behaviours and actions that originate from social issues outside of the workplace and are not necessarily appropriately regulated by legislation or the employer. CCIQ is subsequently opposed to the introduction of additional regulation or increasing compliance activities of associated existing legislative frameworks.

Currently the cost and burden of regulatory compliance is one of the most important ongoing issues facing the Queensland business community. Therefore, if anything, actions are required to reduce current burdens this area. Indeed, our strongest recommendation to this inquiry is to streamline the various existing instruments covering workplace bullying. Coupled with this, we think a preferable approach is to focus on developing awareness and prevention strategies.

CCIQ supports recommendations contained in the report made by the Queensland ministerial reference group in late 2011 on workplace bullying and regards the report as a common-sense approach to this issue. It focuses on the need for coordinated education campaigns and public information sessions; the gathering of more extensive and better quality data from Australian workplaces on the prevalence of workplace bullying; a review of the existing workplace policies on bullying; improved issue resolution processes; and the provision of training and appropriate managerial responses to bullying. We have encouraged the new Queensland Attorney-General to release the reference group's report to this inquiry.

CCIQ believes that individual workplaces do need to take responsibility and undertake proactive initiatives to reduce the potential for workplace bullying issues within a business. We have a particular focus on early prevention and intervention. Employers should be encouraged to focus on maintaining a workplace culture that embraces an atmosphere of trust and respect in which bullying is not tolerated and where disputes are resolved early.

CCIQ is strongly supportive of increasing the awareness and accessibility of current government and industry initiatives that are aimed to reduce workplace bullying. Work is required to reduce the high level of confusion that currently exists within the community about which government agencies are responsible for dealing with workplace bullying. There is a need for better coordination between agencies to reduce the risk of complaints being cross-referred and to provide better services and support to the victims and businesses. A single point of entry or cross-agency protocols are required to streamline the referral process and allow for the collection and disbursal of accurate and meaningful data in the area of workplace bullying.

In conclusion, CCIQ believes that the inquiry into workplace bullying should focus solely on enhancing non-regulatory instruments and initiatives to prevent and address existing issues. Our recommendations include to reduce current regulatory burdens and compliance measures; to enhance focus on early intervention and prevent strategies; and to improve coordination between agencies and stakeholders.

CHAIR: Thank you. What we are hearing in this inquiry is that there is a big gap between what should happen and what does happen in terms of workplace bullying. Obviously there are different suggestions coming through the harmonisation of OH&S. There will be a code of conduct in terms of bullying and harassment. Firstly, what is your attitude towards the code of conduct in terms of workplace bullying? Secondly, if you do not have legislation—and a variety of legislation has been talked about, including something such as Brodie's law, which exists in Victoria—how do you bridge that gap? Will education really bridge the gap that we are hearing about—for example, a significant deficit in managerial skills to deal with workplace bullying—to get it to a point where there is a harmonious workplace? If you do not have a legislative instrument or you do not push people to do it, how are we going to get people to do it?

Mr Behrens : We are aware of the existing legislation in place, and my comment there would be that there are mechanisms that exist and they need to be used and enforced and awareness needs to be raised on what is in place to address this issue. With respect to the proposed national code of conduct covering workplace bullying, the chamber has been very supportive of the harmonisation of OH&S laws across Australia. We do make the point that fewer than four per cent of Queensland businesses operate across interstate borders, and accordingly the regulatory churn that is occurring is an issue for the 96 per cent of Queensland businesses that do not experience the benefits of national OH&S harmonisation but are subject to the regulatory churn. However, there are some things associated with the process that will prove of benefit to business, and one of those things, for example, is the proposed code of conduct for workplace bullying.

This week we are providing final feedback to our Department of Justice on the code of conduct, and we think that the final page of that document is a guide that businesses can put up in their workplace and which can raise awareness of what the responsibilities are as an employer and what your responsibilities are as employees in terms of your interaction with your colleagues.

CHAIR: I have a question about the existing legislative framework. We are going across the country and hearing about slightly different regulatory frameworks. What legislative framework is in place currently that perhaps is not being used or should be used more often to deter people from engaging in or organisations from allowing workplace bullying to continue?

Mr Behrens : If you can bear with me, I have a document. One of the things we put a bit of effort into was collating what is available. I will go through that quickly. In the area of workplace health and safety, you have the model Work Health and Safety Act at a Commonwealth level. You have the draft national code of practice around preventing and responding to workplace bullying. At a state level you have the Work Health and Safety Act and the draft national code of practice preventing and responding to workplace bullying. I am happy to table this document if that would help. Under workers compensation, you have the Safety, Rehabilitation and Compensation Act 1988, a Commonwealth act. Under state legislation, you have the Workers' Compensation and Rehabilitation Act 2003. In the area of workplace relations, you have the Fair Work Act 2009, a Commonwealth act.

CHAIR: Sorry to interrupt. Is there any particular area of the Fair Work Act that you believe addresses workplace bullying?

Ms East : I refer you to the unfair dismissal and unlawful dismissal provisions in part 3 of the Fair Work Act.

CHAIR: That is if someone has left the workplace.

Ms East : That is right, although the general protections of the Fair Work Act provide for a protection against adverse action on the base of a workplace right, so they do contain some fairly stringent provisions to prevent discrimination within the workplace, not just on the basis of dismissal.

Mr Behrens : Under antidiscrimination, at a Commonwealth level you have the Australian Human Rights Commission Act 1986, the Age Discrimination Act 2004, the Disability Discrimination Act 1992, the Racial Discrimination Act 1975 and the Sex Discrimination Act 1984. At a state level, you have the Queensland Anti-Discrimination Act 1991. Under criminal law, you have Queensland Criminal Code 1899 and, in common law, you obviously have torts and breaches of contract.

CHAIR: Are you aware of any situations under common law or criminal law where a workplace bullying matter has been pursued in Queensland?

Ms East : I could not comment on any specific case, but I do know that sections 359A to F of the Queensland Criminal Code contain provision for the availability of a restraining order regardless of whether there has been a conviction for stalking, which is somewhat analogous to 'Brodie's law' in Victoria.

CHAIR: Does that make reference to workplace bullying like 'Brodie's law' does?

Ms East : No. 'Brodie's law' makes specific reference to acts that cause self-harm in the context of stalking, whereas Queensland law is centred around causation of detriment. But it allows for a fairly broad reading. The legislation that was brought about in Brodie Panlock's situation could potentially be read or could potentially give rise to criminal action under those provisions of the Queensland Criminal Code.

CHAIR: But you are not aware of any example?

Ms East : No, I could not give you a specific case in which it has been pursued. The point we are trying to drive home, I suppose, is separating workplace bullying from the very, very severe cases that could probably be more accurately categorised as criminal behaviour.

CHAIR: Are you aware of any prosecutions under the occupational health and safety law for bullying in particular?

Ms East : I am not.

Mr Behrens : I happy to confer with my colleagues within the department. I am sure if you were to have those individuals before this inquiry they would be able to present you with some of the answers that you are after.

CHAIR: We would love to hear that from them. My point is that there is this legislative framework; however, we are hearing from different jurisdictions that to a large extent it has not been used to deter workplace bullying, yet we are hearing some devastating stories and consequences of workplace bullying. So I guess I am trying to grapple with the gap here. There is this legislation and, especially if there is an attribute, there is a particular pathway, but, if you are just a productive worker and your coworkers do not particularly like it and they bully you because of it, there seems to be somewhat of a gap in how you can actually address that. I recognise there are a number of pieces of legislation, but there just seems to be that gap. I just make that comment.

Mr Behrens : It is a very good point that you make and, indeed, within our submission we capture that there does exist a divide between the legislation and some of the incidents that are occurring. That is why the chamber highlights forcefully that we really do need to increase our efforts in raising awareness and educating all stakeholders in the workplace about what their responsibilities are. I think lack of awareness and lack of education account for this disconnect between the sufficient legislation that is in place and the prevalence of workplace bullying. But I would also add that within Australia there does not exist an accurate measure of the degree that workplace bullying is occurring, and we are having to rely on international work to form some opinions in this area and to highlight the streamlined nature of what needs to be put in place so that we can oversee this area.

CHAIR: I am going to ask two more questions. I think one will have a very short answer. I am assuming from your comments about the code of practice that you would like it to be guidance and voluntary, not mandatory.

Mr Behrens : Absolutely.

CHAIR: Yes. I just thought I would establish that. Do you have a provision to assist your members if they are dealing with a workplace bullying scenario? Are they able to ring you up, and what would your advice be? How do you work through that with your members?

Mr Behrens : There are two aspects to this question. The first is that one of the core roles that our chamber has is that it is a conduit of information from government to business and from business back up to government. We are right in the space of educating businesses about what their responsibilities are in this area. The second aspect to this question is that the chamber has in place an employer advice line, and we have detailed industrial relations and HR departments within the chamber that can guide business on what their obligations and responsibilities are in this area.

CHAIR: This might be a bit hard to establish, but, when people ring up, are they starting from scratch? Are they ringing up for advice on and saying they do not even have a policy procedure or is it that they have a policy procedure and now have a situation they do not know how to deal with? Or is it about trying to prevent it?

Mr Behrens : It varies. Some businesses are very proactive and do have well-established procedures in place. They often just ring us to double-check that they have gone through the right courses of action, whereas in some instances businesses do not have those procedures in place, are unaware of their obligations and are really seeking for us to get them out of trouble.

Mrs ANDREWS: I have a question about the CCIQ recommendations and in particular your recommendation 3, which talks about improving coordination between agencies and stakeholders. Can you just expand on that a little bit for us and explain further what you are actually trying to achieve with the referral process. Is that for an employer? Is that for an employee? Is it to actually deal with the situation at the workplace or is it further down the track for litigation?

Mr Behrens : I think where we are coming from is establishing streamlined apparatus within government that deals with workplace bullying so there is a single point of entry so that an individual who is in the unfortunate situation of being the recipient of workplace bullying knows exactly where to go and what avenues are available to them. At the same time, it would be useful as an alternative source of information for businesses on what their responsibilities are. There seem to be many government departments which have a role to play in this area, and we would like to see that streamlined with a single point of entry for issues relating to workplace bullying.

Mrs ANDREWS: So you are effectively advocating that there be one place where an individual who believed that they were being bullied at the workplace could go—they could actually pick up the phone, call and get some support to resolve the issue as well as to outline what their options for redress could be.

Mr Behrens : Yes. To take that one step further, if you were to ask us who we would recommend for performing that role we would say Workplace Health and Safety Queensland. If we are going to embark upon having a workplace bullying code of practice that fits in under the workplace health and safety legislation, presumably they would be the point of entry for that.

Mrs ANDREWS: Just to extend the discussion a bit further, we have had some evidence about the gap between there being an issue within the workplace and then there being litigation. But what do you do in the meantime to assist the parties at the workplace to resolve the issue rather than there being a focus on settlement? Would you see that this referral centre would have a place in the resolution as opposed to the settlement?

Mr Behrens : I think under the Fair Work Act, Fair Work Australia and the Fair Work Ombudsman the process you are describing is in place. It is this dilemma of whether you replicate that infrastructure under Workplace Health and Safety Queensland or try to use the existing infrastructure that is in place. As an example, if you were to have a greenfield approach to some of these issues you would not necessarily have the overlap within government departments at both the state and federal level. I do not know what the solution is, but we highlight that there is significant overlap and duplication in this area. The challenge for this inquiry is perhaps, rather than imposing additional legislation or regulation, to see how we can streamline the existing system to promote outcomes which yield better outcomes for those who are the recipient of workplace bullying.

Mrs D'ATH: I have a number of questions. Firstly, just following on from what you do for your members in assisting with issues and claims of workplace bullying, do you have a common set of materials for those businesses who really do not have any systems in place to deal with this? Have you developed materials that you provide in this area?

Mr Behrens : We do have our own resources. We also refer individuals and businesses to the resources that have been made available from government.

Mrs D'ATH: What is currently available from government? You talked about the fact that there are a number of draft codes and so forth out there, but what is currently available for you to provide to your members?

Mr Behrens : To provide an accurate answer to that question I would need to confer with my colleagues in industrial relations and HR.

Ms East : I can say that Queensland does currently have a state level code of practice that provides guidance for how people conducting a business undertaking can best implement their duties and obligations under work health and safety legislation. That is probably where the value will lie in the draft national code of practice, once settled, because its essential role will be helping people meet their obligations with regard to more specific issues that exist on a broader level under the act. So it will give practical examples of how people can meet those obligations. It will be legally admissible in court proceedings as evidence that people did have information about how they had to implement those duties and obligations. I think those sorts of materials can be fairly useful.

Mrs D'ATH: If we are talking about the same documents, I think those practice guides were developed, with one for employees and one for employers, 10 years ago out of the Queensland Workplace Bullying Taskforce report. You say that they could be useful. I think those practice guides have been around for 10 years now. Are they being used? As an employer organisation representing your members, do you find them useful in providing guidance and helping your members to establish systems to follow?

Mr Behrens : The way to best answer that question is to say that the proposed national code of practice in workplace bullying would be a very valuable updated resource available to business.

Mrs D'ATH: But do you consider there needs to be more clarity around the definition of workplace bullying? Do you find that it is an issue when representing your members?

Mr Behrens : Yes, but you may not necessarily like the answer in that we regard, as previous witnesses alluded to, that there is often a blurring of the line between reasonable management practices and the perception of bullying. A definition which captures this issue would be useful.

Mrs D'ATH: Just out of the ministerial working group that you said existed in 2011 and the recommendations, obviously your comments about—was it the Attorney-General?

Mr Behrens : Yes.

Mrs D'ATH: You recommended that he release the report to this committee, so from that I am assuming that it was not publicly released.

Mr Behrens : No. It was under the previous state government. The recommendations were finalised towards the end of last year.

Mr McGregor : December last year.

Mrs D'ATH: So are you aware of any action that has been taken on those recommendations?

Mr McGregor : No action has been taken as yet, but I know that the results that came out of that report really embodied what we are talking about here today. They capture a whole group of issues and are very relevant to this inquiry.

Mrs D'ATH: Hopefully we can see that report, then.

Mr Behrens : Indeed. If I may just add something further, the recommendations were made in December and the state government pretty much went into caretaker mode in early 2012—unfortunately, the election was called. We had a detailed discussion with the department when we were preparing our submission. We were one of the active participants in the reference group and we wanted to forward the report to you. Unfortunately, the department has made a recommendation to the ministerial office that it be released, and it is now up to the state government to release it. It is interesting that—draw no conclusions from this—that reference group was under the frame of a Labor government which had been very sympathetic to the rights of individuals within the workplace, and it concluded that no additional regulation was necessary but we needed to enforce what legislation was in place and we needed to significantly increase those activities associated with raising awareness and educating stakeholders in what their responsibilities were.

Mr McGregor : What was found through the discussions across the different groups was that with this lack of information, while employers and employees have these guidelines in place and they have pamphlets and leaflets about actions in the workplace, there was a real acknowledgement that employees, especially, did not know where to go after an action had occurred or when an action started to occur, and it was the same for employers. So really what was identified by the group was that, although there is existing legislation and there are rules and guidelines in place, there is a complete lack of centralisation across those different bodies where communication between the police service and government departments was lacking.

Mrs D'ATH: I have one more question, and I suspect this will probably go to your legal officers, who are used to dealing in this area. I understand the position of the chamber in relation to 'no more regulation', but I am interested that you went through a very long list, Mr Behrens, on the legislation that already exists in this area. I just want to drill down on that a little bit more to get some clarity as to where you say there is adequate legal recourse and assistance in existence already. We have talked about the criminal law, and obviously when it comes to the criminal law we are talking about the most extreme cases. You have gone through the range of pieces of legislation dealing with discrimination: antidiscrimination and the age discrimination, disability discrimination and sex discrimination acts. On that, from what I have read in the submissions being put before this committee and my experience elsewhere, in many, many cases when it comes to workplace bullying they fall outside the categories of the discrimination acts, and that is why we have this grey area, because it is not racial discrimination, sex discrimination or age discrimination; it is bullying that does not have particular identifiable categories to it and does not fit neatly in those areas. You have talked about unfair dismissal. Again, the end result is that someone has lost their job. I am interested in finding out where you say sufficient provisions exist to support workers while they are still in the workplace, before we get to that extreme or the end result where either they are out of the job or it is a criminal act now. Let us assume they do not fit neatly into a discrimination category. What assistance exists? I note you quote the Fair Work Act, but I would like you to be a little bit more specific about where you say the support is, what sort of recourse is available and what penalties are in place where there have been breaches.

Mr Behrens : I guess the chamber primarily sees the Work Health and Safety Act 2011 as the primary go-to piece of legislation. Under that legislation an employer has a duty of care towards its employees. There is a very unfortunate side to workplace bullying. It is captured by an employer's responsibility in this area.

Mrs D'ATH: And do you think under that act there is the body sufficient to deal with grievances? That it is not just, 'Here's a breach. Has it occurred? Hasn't it? Here's the penalty,' but actually working with the parties to try to resolve the problems?

Mr Behrens : If I may take that on notice. I need to give that some consideration.

Mrs D'ATH: No problem. Thank you.

Mrs ANDREWS: Given that we are specifically talking about the Fair Work Act, can you also then give us your views—and I am happy for you to give information back to us—as to whether you then believe that the provisions are also wide enough to deal with horizontal and upwards bullying or whether they only provide protection in the one example of bullying, where it is, for example, a supervisor allegedly bullying and employee?

Ms East : I recall that in the South Australian legislation—which will soon be superseded by the harmonised WA and Tasmania legislation—section 54A, I think, of the act provided for essentially protection from horizontal bullying as well as vertical bullying. From memory, that was the only instance of that kind of legislation in the country. That was fairly useful in the sense that it provided procedures that employees being bullied by other employees could use. It involved reporting the instance of bullying to either a health and safety officer within the organisation or, in the absence thereof, a manager in the organisation. Failing resolution at that level, so within the organisation, they could then pursue the matter with an inspector from South Australia's work health and safety department. So that was a fairly unique example, I suppose, of where recourse could be sought by employees in a more independent manner to what is otherwise available.

I suppose WHS legislation can be fairly difficult to navigate for the average person, so the draft code of practice does actually take you through all the processes that are available through the issue resolution process, including a hazard report, when an investigation or an inspector needs to be called in. It is just looking at various triggers that might bring into effect the operative provisions of the WHS legislation. Previous witnesses spoke about empowering people within the workplace. I have to use the cliche that knowledge is power. If people know what their obligations and duties are and they know what their colleagues' and their managers' obligations and duties are, that can contribute to a much more positive working environment. Again, those mechanisms exist within the WHS legislation. It is just that you have some supplementary material, like the draft code of practice, that often serves as almost a translation document to help people feel that they know what their entitlements and duties within the workplace.

CHAIR: With the example you mentioned that was included in the act, I am assuming, based on your position of having no more regulatory imposts, that you would not like to see something like that from the South Australian health and safety act being put into the national act.

Mr Behrens : It should be subject to a cost-benefit analysis and whether the benefits associated with its inclusion outweighed the costs.

Mrs D'ATH: Has there been any analysis or research by the chamber about the cost impact on productivity to your members on bullying in the workplace or workers compensation claims?

Mr Behrens : No. I can confer with the chamber network across Australia, but to my knowledge I am unaware of that.

Mrs D'ATH: Especially, even, in relation to workers compensation claims as a consequence of bullying. I would be interested to know.

CHAIR: They are working to collect all of that and providing that to the committee.

Mrs D'ATH: Thank you.

CHAIR: Thank you very much coming here today. For any extra information that has been requested, if you are able to forward that on through the secretariat, I would very much appreciate that.

Proceedings suspended from 11 : 00 to 11 : 19