Bullying laws need reform

Unions and experts are urging the Gillard government to make sweeping reforms to bullying laws, arguing the current system prolongs victims’ pain.

Public hearings for a parliamentary committee inquiry into workplace bullying close on Friday. The committee will deliver its report to federal Workplace Relations Minister Bill Shorten by November 30.

ACTU assistant secretary Michael Borowick says: “Workplace bullying is a health and safety issue that has been neglected for too long and must be addressed.”

The ACTU has called for tougher penalties and a more accessible forum to quickly and cheaply resolve bullying complaints and where workers can bring claims even if they have not yet been injured by the bullying.

Similarly, the Law Institute of Victoria argues there should be a “quick, cost effective civil remedy through a tribunal for bullying in the workplace”.

RMIT University management professor John Toohey says current laws allow employers to drag out investigations, and another major problem is that human resources professionals lack capabilities.

“We see very few examples of effective management of bullying,” he says, adding the typical response of organisations is to deny it, then see the problem as isolated to a few bad apples and finally taking a “weak-kneed approach” to investigation and conciliation.

Various governments’ health and safety legislation implies a general duty of care to manage psycho-social hazards in the workplace rather than specifically banning bullying.

Another failing of existing health and safety laws, according to the ACTU, is that workers face extreme burdens in proving their case because it is a criminal matter and all elements must be proved beyond reasonable doubt.

If workers rely on health and safety laws they must rely on their regulator taking action.

“This can take years to complete, and often when irreparable damage has been done to victims of bullying behaviour,” the ACTU says.

Bullied workers can bring claims under discrimination laws or common law. In Victoria, there is also Brodies’ law – an amendment to the Crimes Act which introduces 10-year prison terms for extreme bullying.

But this law applies to such a narrow range of cases that so far no one has been prosecuted under it a year after it was introduced.

Employers have told the bullying inquiry existing laws provide sufficient protection for victims.

Daniel Mammone, the workplace policy director at the Australian Chamber of Commerce and Industry, adds that states should monitor the effect of Brodies’ law before following Victoria’s lead.

Employers also need more certainty surrounding changes to unfair dismissal laws so that they are not in a catch-22 situation when it comes to sacking staff for bullying, he says.