Good afternoon and welcome to the BRR Legal Brief, looking at the major legal issues affecting Australian business.  I’m David Bushby and today we’re talking about workplace bullying, which is firmly back in the headlines after the Government initiated a Parliamentary inquiry into workplace bullying and here to discuss what this inquiry will mean for business and what law reform may come out of it, as well as some key tips for business and how they can deal with any bullying that goes on in their workplace is employee relations expert Cormack Dunn from Freehills here in Sydney, welcome Cormack.

Thank you David.

Cormack just to begin with workplace bullying is not exactly a brand new issue, it’s been at the forefront of HR managers and managers’ minds for quite some time, what’s prompted this inquiry now?

I think that’s right, I think it’s fair to say there has been an awareness that this is a issue in workplaces – Australian workplaces for some years.  But in many ways it’s been a struggle for regulators and employers to get a handle on exactly the nature of the problem and what they need to be doing to managing the problem.  It’s a very untraditional area of health and safety, we’re more comfortable as health and safety lawyers talking about mine collapses and oil rigs blowing up than we are about workplace bullying.  So I think it’s that fact that it’s a non-traditional area of health and safety, it’s caused the Parliamentary inquiry to start to think about these issues.  There has been a code of practice recently developed by Safe Work Australia that Code of Practice received significant amount of comment and I think it’s because of that Code and because of a general concern in the community that this inquiry has resulted.

And looking at the inquiry itself what will the Government be seeking to look at through the inquiry?  And secondly what do you expect will be the outcome that Government is looking for?

Well there’s a terms of reference with the inquiry, but I think in its simple form the members want to hear people’s stories, they want to understand the nature of workplace bullying in Australian workplaces, they want to hear about people’s own personal experiences and what they’ve witnessed and they really want to get a handle on just how much of an issue workplace bullying is in Australian workplaces.  I think arising out of those public hearings which will be held around Australia over the course of the next few months, there will be some changes to the law, I think there’ll also be some amendments to this Code of Practice, this national Code of Practice on prevention of bullying in the workplace, and I think there’ll be a greater awareness, particularly with safety regulators and unions too in relation to this being a health and safety issue that needs to be treated seriously.

And just looking at the law reform perspective, I understand that the laws governing workplace bullying operate differently across the country; take for example between NSW and Victoria.

That’s right in NSW we don’t have any specific law addressing bullying and that’s different to Victoria.  Victoria had a situation a number of years ago where rather tragically a 19 year old waitress, by the name of Broadie Panlock took her own life as a result of significant and quite heinous workplace bullying.  As a result the Safety Regulator there prosecuted three co-workers, the manager and the café and ultimately the courts imposed fines in the total of $330,000, but for many the general comment in the community was that those laws just didn’t go far enough and so as a result the Victorian Crimes Act has been amended, it now includes elements of bullying in the stalking definition, which means that for cases that are quite serious the person faces a criminal penalty of up to 10 years imprisonment.

And do you think that could be something that will as a result of the inquiry roll out across the country maybe?

Look it’s difficult to say I know that Queensland have announced some concerns around the adequacy of their laws and it’s an area where I think there will be a fair amount of heated discussion over the next six or 12 months, but it’s entirely foreseeable that we will see specific provisions in the new Work Health & Safety Act addressing workplace bullying that will carry significant penalties like imprisonment.

Well just looking at bullying that does go on in the workplace, and I guess to put some statistics around this, do we know whether the bullying occurs between a team member and their manager or is it more between co-workers?

Look we don’t, and that’s I think part of the problem.  There’s not been a lot of research in relation to bullying here in Australia.  It’s an issue that we know exists but we don’t really have a full and complete understanding of what it’s really all about.  I think that’s one of the things the inquiry wants to get to the bottom of to try and define it a bit more, rather than perhaps looking at overseas experiences to find out exactly what the experiences are here in Australia.

And I also wanted to touch on a point that might be relevant for HR managers is this issue of performance management or reprimanding an employee versus workplace bullying, is there a clear difference between the two or is there a fine line?

Look in my opinion there is no fine line, they are two very separate activities.  Bullying is a significant behaviour that results in the isolation and demoralisation of employees, that’s not the purpose of performance management.  Performance management is about getting the best out of your people.

And just finally Cormack, I guess some tips for businesses and HR managers for dealing with workplace bullying as an issue generally in their workplace, some tips there and then finally what should a business or a manager do when the issue is first brought to their attention?

I think it’s important to recognise that the most common forms of bullying are not those where we see cases like – with involving Broadie Panlock.  The most common forms of bullying are the subtle forms of behaviour that result in a person feeling isolated or marginalised in their work environment or feeling that their work is not meeting a standard that is subjective and different between employees.  So that’s the common type of bullying that takes place in the workplace.  So those are the things that you need to have your radar out for.  In relation to your question regarding tips, my recommendation is to treat it seriously and treat it quick.  That really requires you to already have in place procedures to deal with complaints so that when a complaint is made you know clearly what to do, we’ve seen instances in the past where those procedures haven’t been in place and managers have tried to deal with it sort of on the hop, that can result in mistakes and ultimately lead to a decrease in the employee’s productivity and ultimately cause your good employees to go and find a better employer.

Well some fantastic insights and we’ll certainly keep a very close eye on how this issue evolves over the coming weeks and months with the inquiry and thanks again for your time today Cormack.

My pleasure.

And viewers thank you for tuning in for this week’s Legal Brief, we look forward to having your company next week for the episode.