: Workplace bullying: Enhanced protections or blurred responsibilities?

Workplace bullying: Enhanced protections or blurred responsibilities?

Eric Windholz

On 12 February 2013, the Commonwealth government responded to the November 2012 House of Representatives Standing Committee on Education and Employment report: Workplace Bullying ‘We just want it to stop’. That report inquired into what Workplace Relations Minister Bill Shorten described as the ‘scourge’ of workplace bullying, and which the Productivity Commission estimated costs the Australian economy between $6 billion and $36 billion annually.

The House of Representatives Committee made 23 recommendations to address workplace bullying. Key recommendations included the adoption of a national definition of workplace bullying that each jurisdiction would adopt; the establishment of a national advisory service to provide advice and guidance on what constitutes workplace bullying; and the Commonwealth government working with the states and territories to develop national minimum standards for managing workplace bullying and nationally consistent guidance, training materials and enforcement and compliance strategies. Receiving very little attention at the time the report was released was the last of its 23 recommendations — that the Commonwealth government provide for an individual right of recourse for victims of workplace bullying to seek redress through an adjudicative process.

The Commonwealth government’s response supports or supports in principle 19 of the 23 recommendations made by the Committee. The response supports measures to adopt a national definition of bullying, to promote education and awareness of what constitutes workplace bullying, and the development of national guidance and training material. The centrepiece of the government’s response, however, is its announcement that it will amend the Fair Work Act to allow an employee who has suffered workplace bullying to seek assistance through the Fair Work Commission. The Fair Work Commission will be required to deal with any application as a matter of priority (including by listing the matter for consideration within 14 days), and will be empowered to make orders to deal with the complaint and/or to refer it to the relevant state/territory Occupational Health & Safety (‘OHS’) regulator.

This is a bold reform. Whereas the Committee’s recommendations left primary regulatory responsibility with the states, this reform potentially makes the Commonwealth the central clearing house for workplace bullying complaints. It also places workplace bullying within the industrial relations arena. Minister Shorten has promised to work with stakeholders on the detail of the amendments. This detail will be important to ensure the reforms do not create unnecessary overlap and confusion with existing state and territory OHS and workers’ compensation regimes, and the blurring of roles and responsibilities that has come to characterise the operation of Australia’s federal system of government in many other areas.

ERIC WINDHOLZ teaches law at Monash University.

(2013) 38(1) AltLJ 55
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