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An insight from HR leaders on the proposed reforms to Bullying laws

Kirryn James, Senior Associate and Erin Lynch, Associate

On 5th and 6th March 2013, PCS conducted its rst roundtable event attended by senior HR leaders.

This unique event gauged the response of HR leaders to the Government’s proposed workplace bullying reforms and provided numerous insights, both from the organisations represented, as well as PCS’ extensive experience with other clients, concerning the identification of potential bullying acts and the management of workplace bullying complaints.

The resounding conclusion was that workplace bullying continues to be a significant issue for most organisations, with the introduction of the bullying reforms elevating this concern.

In attendance was Greg Harrison, a former long-standing Commissioner of the Fair Work Commission (“FWC”) who commenced working with PCS as a consultant in January 2013. Greg provided a valuable dimension and contribution to the debate by discussing the likely role of the FWC in responding to workplace bullying complaints.

Shifting the mindset

One of the topics that the HR leaders debated was the confusion amongst employees in recognising what is, and is not, workplace bullying. While the prevalent media attention on workplace bullying over recent years may be responsible for the increased number of workplace bullying claims being made, it was felt by the attendees that employees often prematurely or inaccurately labelled behaviour as workplace bullying and in part this may also be attributable, in particular, to younger generations of workers who felt more empowered to object to certain behaviours which older generations may have otherwise tolerated (and therefore proliferated).

PCS emphasised that with the introduction of the workplace bullying reforms, organisations would need to take a holistic view in addressing workplace bullying, if they were not already doing so. Such an approach consisted of organisations implementing education and training programs for all managers and employees and taking steps to shift the mindset of their managers and employees in relation to workplace bullying. Currently, the term “workplace bullying” is inappropriately used to describe a broad range of behaviours that do not constitute workplace bullying. Instead, employers should focus on behaviours the subject of any complaint and investigating those before determining whether those behaviours amount to workplace bullying. It was observed that if the behaviours were dealt with in this manner they might be more easily resolved at workplace level.

When asked whether they would do anything differently in light of the proposed reforms, the HR leaders agreed that the prioritisation of training and education was key to minimising risks of complaints and litigation.

The role of the FWC

In accordance with the workplace bullying reforms, the FWC will be tasked with receiving and handling workplace bullying claims. While few details have been released in relation to the role of the FWC, Greg Harrison, stated:

“What I see happening, and the devil is in the detail, to the Fair Work Commission’s role, will be an extension of what they are doing in relation to adverse action and general protections.”

One of the key concerns discussed at the roundtable event was the impact of the FWC’s role and the potential inability for organisations to resolve workplace bullying complaints at the workplace level. In addition, concern was expressed over the adversarial nature of the FWC process and the impact that this is likely to have on the ongoing employment relationship.

The time limits that the reforms are proposing also raised concern for the HR leaders, who believe that the limits are unreasonable and would not assist genuine complainants who often have complex issues to resolve.

The HR leaders who participated in our roundtable event came from a range of different industries (including construction, advertising, health and hospitality) allowing us a myriad of insights into the multi-faceted nature of workplace bullying. While some industries experience high levels of workplace bullying complaints, others record fewer instances.

It is important that organisations recognise that no two workplaces or industries are the same, and that within an organisation there are a number of symptoms of bullying which employers should be alert to, including, an increase in personal/carer’s leave being used or workers’ compensation claims, high staff turnover, lack of staff commitment and behavioural changes. With an employer’s alertness can come swift and effective action, no matter the workplace or the industry.

The importance of leadership

All HR leaders agreed that an organisation’s risk depended on how workplace bullying was tolerated at the top of an organisation, with “leading by example” being a key factor in preventing and addressing workplace bullying. As one attendee described it “the senior team sets the agenda… They need to model behaviour and act on issues where there are genuine issues.”

HR leaders expressed opposing views on the role of senior managers and whether they are frequently “gun shy” with respect to the performance management of an employee. HR leaders quoted numerous examples of genuine performance management issues where rather than addressing those issues, managers had short-cut the process, resulting in a bullying complaint. Some HR managers argued that these short-cuts arose from the fear of a bullying complaint while others countenanced that that could be remedied by increasing the managers’ capability to handle performance management and a bullying complaint.

What is the “risk”?

As part of the roundtable event, we asked the HR leaders whether workplace bullying was viewed as a high risk, medium risk or low risk within their organisation. The majority of participants responded that workplace bullying was viewed as a medium risk, but that there was certainly a shift towards workplace bullying being seen as a “high risk” given the recent attention and workplace bullying reforms.