"Bullying in the workplace and associated inter-personal matters requires a mix of skills and experience that many persons in authority in the workplace may not have"
Historically federal and state governments have sought to regulate industrial interaction of ‘groups’ (employers and their organisations and employees and their organisations – unions).
Issues were dealt with at the macro level (across industries and sectors of the economy); the emphasis being on resolution, or avoidance, of ‘disputes’- given the title of ‘Industrial Relations’.
During the 1990s the emphasis moved down to the enterprise level, however the focus was still on collective interactions, primarily dealing with bargaining processes. In 2006 the Howard Government’s Work Choices legislative package created a significant, (in Australian terms), departure from the traditional ‘Industrial’ (third party resolution approach) to that of ‘Workplace Relations’, with the relationship between an employer and the individual worker as its core.
Instead of ‘disputes’ and ‘bargaining’, the new legislative package had front and centre – rights & obligations. The 2009 Fair Work Act, whilst retaining many of the least controversial aspects of its predecessor, seeks to go beyond the relationship between employers and their employees; with an emerging trend to address, in the broader context, the balance of work and lifestyle.
Legislation now deals, or is intended to deal, with both employment and inter-personal relationships. The latest manifestation of this trend is the anti-bullying measures that came into being on the 1st of January, as part of the Fair Work Amendment Act 2013.
So what constitutes bullying?
For the purposes of the new federal law, bullying occurs when: - A person or group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; The behaviour creates a risk to health and safety.
- Aggressive or intimidating conduct;
- Belittling or humiliating comments;
- Spreading malicious rumours;
- Teasing, practical jokes or ‘initiation ceremonies’
- Exclusion from work-related events,
- Unreasonable work expectations, including too much or too little work, or work below or beyond a worker’s skill level
- Displaying offensive material
- Pressure to behave in an inappropriate manner.
What does not constitute bullying?
- Reasonable management action carried out in a reasonable manner does not constitute bullying
- Performance management processes
- Disciplinary action for misconduct
- Informing a worker about unsatisfactory work performance or inappropriate work behaviour
- Directing a worker to perform duties in keeping with their job
- Maintaining reasonable workplace goals and standards.
Whilst the above are all examples of management action occurring in all workplaces on a day to day basis, if mishandled, they have the potential to fall foul of the new law.
Who is covered by the new law?
As mentioned in the introduction, industrial laws, until recently, have sought to regulate the relationship between employers and their employees (workers). The provisions of the Act have an expanded definition of ‘a worker’ which includes
- an employee -a contractor or subcontractor -an employee of a contractor or subcontractor
- an employee of a labour hire company who has been assigned to work in a particular business or organisation
- an outworker -an apprentice or trainee
- a student gaining work experience
- a volunteer.
The term ‘Worker’ is only qualified by the requirement that the ‘Employer’ is a ‘constitutionally-covered business’ [i.e; a constitutional corporation – a proprietary limited company or an incorporated association conducting trading or financial operations].
Consequently, a far wider population falls within the umbrella of the new provisions, than has historically been the case.
How to minimise the risk of bullying:
When all is said and done, bullying is a workplace health and safety matter; and as such employers have a duty of care to provide a safe workplace (free of intimidation and fear). As with other workplace grievances, complaints of bullying are best dealt with promptly and effectively, within a recognised and observed framework;
Managers should encourage subordinates to raise issues within the workplace in the first instance. Employees should be encouraged to communicate their concerns to
- Their supervisor/manager;
- A Health & Safety Representative;
- The company’s Human Resources Department;
- Their union representatives.
hese documents must be widely available to all employees and regularly reviewed to ensure that they meet the needs of the organisation and all stakeholders (Management, employees and clients). The trends referred to in the introduction to this article put greater emphasis on the importance of recruiting and promoting the right candidates in the workplace. A mis-alignment of an individual, their abilities and personalities with their role and responsibilities has the potential to cause stress to the employee and those around them in a working environment.
Bullying is but one symptom of poor or under-resourced human resource management. Therefore it is important that persons in a position of authority (from the proprietor to first-line supervisors) are aware of their responsibilities under the new law and are provided appropriate training to deal with circumstances as they arise.
Bullying in the workplace and associated inter-personal matters requires a mix of skills and experience that many persons in authority in the workplace may not have, or if they do would benefit by outside assistance.
Employer organisations, industry or trade groups, chambers of commerce, Department of Business in most states or territories offer help and advice to small business operators.