by Bernie Althofer AFAIM, Managing Director of EGL I Assessments Pty Ltd
Source: Safety Concepts
The OHS harmonization process will revolutionise how individuals and
organisations approach workplace bullying. If it doesn't, workplace
bullying will continue as a critical physical and psychological issue
affecting individuals and organisations forever.
So far in Australia, there have been relatively few prosecutions of
organisations or individuals for health and safety breaches relating to
workplace bullying. However, the recent successful prosecution of and
employer and employees linked to the death of Brodie Panlock in Victoria
may be the first step as Governments are starting to view deadly
implications of the short, medium and long term and sometimes fatal impact
of this insidious practice.
Despite publicity generated by Government Departments and strong media
interest when there has been a death following a workplace bullying
incident, I believe that many public and private sector organisations are
being lulled into a false sense of security. Lack of data, small numbers of
allegations dealt with quickly, or individuals not reporting incidents
create an illusionary perception that 'all is well' and 'we are doing
The tides of change are coming and as every day goes by, the tide is
picking up strength just like a tsunami. What is this tide of change? In a
nutshell, it is the Work Health and Safety Act that is due to be
implemented in January 2012. Will it make a difference?
I believe that some of the changes will have a dramatic affect on how
executive officers think about, and even commit themselves to the notion of
work health and safety. They will have to about the physical and the
psychological aspects if they are to meet their obligations and show that
they can meet due diligence requirements.
Barry Sherriff and Michael Tooma have written an excellent, user friendly
publication that is produced by CCH. I believe the way that they have
interpreted the legislation has resulted in the publication of the book
'Understanding the Model Work Health and Safety Act'. Their explanations of
various definitions and what they actually mean gives credence to the
belief that the tides of change are coming.
It is not intended to reproduce all the definitions covered by Sherriff and
Tooma, but I am going to refer to few where I believe public and private
sector agencies need to focus in terms of workplace bullying.
Executives might be blissfully unaware that changes to the legislation
means that there is every possibility that they will be considered an
'officer' under the model WHS Act, and as such they must exercise due
diligence to ensure that there organization complies with its duties under
the legislation. Sherriff and Tooma point out that the term "officer" has
the same definition as it has in the Corporations Act 2001. They also
indicate that the definition is extended to apply to officers of the Crown
by s. 244 of the model WHS Act. So, are you an officer? Sherriff and Tooma
(2010:32) provide a list in relation to who is an officer.
Who is and who is not an officer in your organisation?
They also discuss due diligence and provide some discussion as to what is
meant by due diligence. It is interesting to note that Sherriff and Tooma
(2010:33) indicate that officers need to make themselves aware of changes
to legislation and developments in case law as well as Australian
standards. Does this apply to workplace bullying? Well yes, it does.
Courts, Commissions and Tribunals are continually making decisions that
impact directly and indirectly on individuals and organisations. Whilst
some organisations may cut back on training, it is essential that the Board
and Executive officers be regularly briefed or involved in training
sessions so that they can maintain currency in trends and issues and even
decisions associated with workplace bullying.
Cutting back on training may even have a negative impact on how 'officers'
demonstrate that they have met their obligations or fulfilled due diligence
Some things in relation to workplace health and safety might not change
dramatically, but the definition of a worker is worth considering. As
Sherriff and Tooma (2010:52) indicate, a person is a "worker" if they
carry out work in any capacity for a PCBU. It is a broad definition, but
they also indicate that it 'includes work as an employee, a contractor, a
subcontractor, an employee of a contractor or subcontractor, an employee of
a labour hire company, an outworker, an apprentice, a trainee, a student
gaining work experience, or even a volunteer.
Each of the 'workers' identified above can at any stage be involved in a
workplace bullying incident so it is important that the safe system of
work, including the prevention, detection and resolution of workplace
bullying cover these people. The task is to read your current policy and
see if the definition of worker meets this requirement.
Does your policy cover those 'workers' in terms of workplace bullying?
Who is a person at a workplace?
There are some subtle changes to the meaning of 'who is a person at a
workplace?' Given that workplace bullying can involve internal and external
employees or customers, this is an important definition. As Sherriff and
Tooma (2010:53) indicate, 'the duty of care of a person at a workplace
is intended to capture visitors to workplaces, such as customers and
clients, passers-by, relatives and associates of workers, and
Does your workplace bullying policy cover this definition?
What is a workplace?
Workplace has been mentioned several times. Workplace bullying can happen
across a diverse range of locations and a key example of this is 'cyber
bullying' or stalking (a criminal offence). It is important that employers
and employees have a detailed understanding of this section. Sherriff and
Tooma (2010:53) indicate that:
'a workplace is defined as a place where work is carried out for a
business or for an undertaking. It includes any place where a worker goes,
or is likely to be, while at work (for example, a vehicle, a vessel, an
aircraft or other mobile structure, any waters and any installation on
land, and on the bed of any waters or floating on any waters). As such, not
only are factories, shops, construction sites and offices workplaces, but
roads, homes, national parks, schools, hotels, airports, aeroplanes, ports
and ships are also workplaces when people are working there. Indeed, any
place can be transformed into a workplace if people work there.'
So what is the relevance of that definition to workplace bullying?
Workplace bullying can occur in any of the above places, and can be
committed by employees of the organisation, or by employees of other
organisations. How does your workplace bullying policy define workplace? Is
it defined in your health and safety policy, or in some other document that
employees hardly ever refer to?
Given that Courts, Commissions and Tribunals appear to have taken a broad
view about workplaces and what is workplace related, it is important that
employees understand the parameters in which they operate. For example, the
birthday bash of work colleagues held in an off site location may be
considered work related if an event that occurs at the party site is
discussed in the workplace proper.
Some organisations will allow employees to attend post event functions e.g.
after a Conference, but 'kick on events' may occur after the post event
functions. Depending on the circumstances, a 'kick on event' may be
considered work related, or even a workplace. From time to time,
allegations of sexual harassment and bullying arise following such events,
and in some cases, excessive consumption of liquor has occurred.
Changes to the workplace, broadening of definitions and allegations of all
forms of inappropriate behaviour can result in adverse publicity and damage
to individual and organisational reputations.
Is there a need for panic? Well, no not at the moment.
However, if I were an Executive in the public or private sector, I would
want to make sure that I could meet all the obligations placed on me
through the changes to the Work Health and Safety Act and I would to be
able to demonstrate that I could meet due diligence requirements. I would
not to be sitting in some Court, Commission or Tribunal trying to explain
why I had failed in my duties as an 'officer'. I don't think like would
like to be explaining to the CEO or to the Board about how my inactions
failed the organisation.
At the same time, if I was an employee giving evidence in a Court,
Commission or Tribunal as to why I had committed a breach of work health
and safety, I would want to know the answers.
What should I do?
Executive officers should be getting briefings from their health and safety
Health and safety personnel should be working hand in glove with HR, Risk
Managers, and other key personnel concerned with managing physical and
psychological hazards in their organizations.
Employees should approach their unions or health and safety personnel to
find out what their obligations are and what they have to do meet them.
Health and Safety policies and procedures, along with various HR policies
should be reviewed to ensure that they meet the requirements of the Work
Health and Safety Act.
In the meantime, publications such as that listed in the references provide
a very good understanding of the key issues identified in this short paper.
Alternatively, there are a number of Safety Conferences being held between
now and 2012 where key note speakers address the Work Health and Safety
Act. I have been to several of these, and the Melbourne SIA featured the
eloquence of Barry Sherriff of Norton Rose explaining in a no-nonsense
manner just how the new Act is going to impact on organisations and
Sherriff, B. & Tooma, M. (2010) Understanding the Model Work Health and
Safety Act. CCH AUSTRALIA LIMITED. Printed in Australia by McPherson's
Printing Group. ISBN: 978 1 921593 72 7.