The issue of workplace bullying has been catapulted to the top of the agenda with the recent introduction of anti-bullying provisions in the Fair Work Act 2009, which came into effect on 1 January 2014.
While much of the recent focus has been on the power of the Fair Work Commission to make stop bullying orders, Matthew Orr, a lawyer at Holding Redlich, says directors must remember they have significant personal obligations under safety legislation to ensure that bullying does not occur in the first place.
He says: “Bullying is repeated and unreasonable behaviour that is, whether intentional or not, humiliating, intimidating, threatening or undermining and which creates a risk to health and safety. Under safety legislation, officers have a non-delegable and proactive duty to take reasonable steps to ensure their business protects the health and safety of its workers. It follows that directors must take reasonable steps to protect workers from the risk of bullying.”
Orr says directors are required to take the following steps to satisfy the due diligence requirements of their officer duty under section 27(5) of the Work Health and Safety Act 2011.
1.Knowledge of work health and safety matters
Directors are required to acquire and maintain current knowledge of bullying issues. This is best achieved through a systematic knowledge management process such as a safety briefing or subscription to a safety bulletin.
2. Understanding of operations, hazards and risks
Directors need to understand how their organisation’s specific operations, and the industry in which it operates, may create a risk of bullying. This means having an awareness of the organisation’s working environment to determine whether there is a bullying culture that underlies it or the risk of one developing. For example, if your business involves apprentices there could be initiation practices going on which amount to bullying. If your business is more office-bound, there may be a risk of managers being subject to aggressive or abusive directions which could easily amount to bullying.
3. Availability of resources and processes
It is critical that directors ensure that their business has a clear anti-bullying policy that outlines a zero tolerance stance. This policy, which should be provided to employees on commencement and be available on any intranet, must explain what constitutes, and what is not, bullying. It should also set out the rights and responsibilities of workers and the consequences that might flow from unacceptable behaviour.
Directors must also ensure that adequate resources are provided to conduct training programs (including refresher courses) on anti-bullying so that employees can understand how the policy applies in practice. In addition, employees need access to a clear reporting system, which sets out how their complaint will be dealt with, including the business’ approach to conducting a fair and efficient investigation process.
4. Monitoring safety performance
It is all very well to have good policies and reporting processes in place, but directors must check that their business also has effective investigating and monitoring systems. Reports of bullying must be responded to in an appropriate and timely manner. This may range from informal discussions with the bullied employee to a full-blown investigation conducted by an independent third party.
To comply with their duties, directors must question management as to whether the organisation not only takes steps to deal with the incident that is the subject of complaint, but also implements control measures aimed at preventing similar incidents in the future. Directors should also query whether monitoring of those controls (such as through anonymous staff surveys) is being undertaken to ensure their ongoing effectiveness.
5. Legal compliance and verification
Directors need to ensure their organisation implements a legal compliance audit process to check that the systems in place are operating effectively and to avoid any breaches of the safety legislation. Key to this is ensuring that the audit reviews the frequency and adequacy of training and instruction of workers about bullying.
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