105 submissions were received by Safe Work Australia in response to the release of the second iteration of the draft model Work Health and Safety Code of Practice for Preventing and Responding to Workplace Bullying. Submissions were received from individuals, employee organisations and business groups. The themes arising from these submissions give an interesting insight into the issues Safe Work Australia will consider in giving guidance to business regarding preventing and managing workplace bullying.
A Code, guidance or delegated legislation?
At the invitation of Safe Work Australia, a key issue in a number of submissions was whether the document should be in the form of a Code or guidance.
Codes of Practice apply in States and Territories that have implemented harmonised work health and safety legislation (at this stage, harmonised laws apply throughout Australia except in Victoria and Western Australia). In most cases, following an approved code of practice would achieve compliance with the health and safety duties in the WHS Act, in relation to the subject matter of the code. Codes of Practice are also admissible in court proceedings as evidence of what is known about a hazard, risk or control and the Court may rely on the Code when determining whether the duty holder has met the required standard of care. If a Model Code of Practice prepared by Safe Work Australia is released regarding preventing and managing bullying it will apply in a jurisdiction when that jurisdiction has formally adopted that Code.
In contrast, a “guidance”, whilst useful in assisting duty holders on their obligations does not have the same evidentiary force as a Code. This allows duty holders to use the document as a reference guide but not necessarily incorporate each aspect of the document in their organisation.
At the other end of the spectrum, delegated legislation, more commonly known as a “regulation” has legal force such that compliance with the document is mandated by law.
Perhaps not surprisingly, the submissions were divided on the best “status” of the document with the vast majority of submissions from employee groups (and individuals) preferring the force of a Code whilst employer bodies prefer the flexibility offered by a guidance paper. The Australian Council of Trade Unions (ACTU) in its submission went one step further and called for bullying to be dealt with by way of a “Psycho-social Regulation” together with supporting codes of practice.
Main issues raised by employee groups
Employee groups were, again not surprisingly, concerned about any suggestion that worker representatives have only a “support” role to play in any workplace investigation. The ACTU called for employees to have the right to be represented by their worker representative and for the insertion of a specific requirement that all bullying investigations be conducted in accordance with the principles of natural justice.
Employee group submissions also sought to emphasise managerial responsibility to manage and control risks associated with workplace bullying rather than seeing bullying categorised as an “interpersonal conflict” primarily the responsibility of employees.
Main issues raised by employer groups
Aside from the status of the document, many employer group submissions were focused on the cost to business of complying with the Code and the uncertainty and risk for employers in dealing with bullying issues.
The requirements for bullying policies, training and maintenance systems and timely investigations into bullying complaints conducted by investigators were seen as overly burdensome and some claimed, impossible, for smaller businesses. One submission even called for a government “fighting fund” to be developed to fund these initiatives.
Other groups referred to the impracticalities of applying some of the recommendations to non-traditional worker arrangements such as labour-hire and subcontracting.
Employer groups also sought to highlight the difficulties for employers in managing psychological risks such as bullying as opposed to physical risks and called for guidance material to reflect this difficulty.
Implications for employers
As highlighted in a number of submissions, the draft Code does not expressly recognise the introduction of the new bullying jurisdiction in the Fair Work Commission from 1 January 2014, nor does it clarify how the draft Code could be a factor in any such proceedings. Whilst it is difficult to predict the ultimate status of the “Code”, one thing is clear. Irrespective of whether the document is released as a Code or guidance (or even regulation), an employer who now takes steps to meet the standards set out in the draft Code will be better placed to meet their WHS obligations and respond to bullying complaints come 1 January 2014. Workdynamic Australia offers a range of packages to help your business meet its obligations in relation to workplace bullying. Please do not hesitate to contact us for a solution tailored to your business’ needs.
This article was written by Jane Wright and Jonathan Wright Directors and Principals of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.