Business Law

Draft Code of Conduct regarding bullying in the workplace

Published in: February 2012

Much attention has been focused in regards to the need for a national code outlining behaviours that compromise ‘bullying’ in the workplace, as well as developing policies and procedures that addresses the problem. A Draft Code has now been released by Safe Work Australia for comment.

Small businesses dealing and bullying

The Draft Code of conduct for ‘Preventing and Responding to Workplace Bullying’ (the Code) in the workplace, potentially offers small business owners clarity and a point of reference when dealing with harassment in the workplace. Although the Code itself is not legislation, it can be used as evidence for defining a breach of obligation under the Workplace Health and Safety Act and an inspector may refer to the Code of Practice when issuing a recommendation or prohibition practice.

The release of the Draft Code is part of the Occupational Health and Safety Harmonisation Regime which commenced on 1 January 2012.

Policy and procedure

The Draft Code of Practice is an approved code under s 274 of the Workplace Health and Safety Act and sets out policy and procedure for preventing, and responding to workplace bullying.

According to the Code, every person in the workplace has a legal responsibility in relation to bullying. Although, the person conducting the business has the primary responsibility and duty of care in regards to the prevention of workplace bullying. The duty involves the providing of a workplace environment that does not present a risk to the health of employees; providing safe systems of work (including a system for addressing bullying); and monitoring the health of workers and the workplace environment.

Workers in a place of employment also have further responsibilities: to take reasonable care of their own health and safety; to take reasonable care that their own acts or omissions do not adversely affect the heath and safety of others; to comply, so far as is reasonably practical, with any reasonable instruction given by the person conducting the business. 

What is bullying under the Code?

Bullying is repeated unreasonable behaviour directed towards a worker or group of workers that may create a risk to health and safety. Behaviour considered unreasonable is actions that a reasonable person, having regard for the circumstances, would see as victimising, humiliating, undermining or threatening.

Bullying can be direct or indirect, and can occur over the phone, in person, via SMS, or through other mobile communications. Examples of direct bullying include: abusive; insulting or offensive language; spreading information or malicious rumours; behaviour or language that frightens, humiliates, belittles or degrades a person, which may also include criticism that is delivered by yelling and screaming.

Suggested steps to prevent workplace bullying, discrimination and harassment

According to Occupational Health and Safety Handbook, the following steps can help employers prevent or minimise problems in the workplace:

• encourage respectful and courteous workplace behaviour;
• put in place a workplace policy that includes a process for reporting and investigating complaints;
• educate all staff about bullying and harassment, letting them know what is acceptable behaviour, and what is not;
• respond promptly to any evidence of inappropriate behaviour;
• treat all complaints seriously and deal with them quickly and confidently;
• train supervisors and managers about company policy with regard to bullying and harassment, while encouraging them to address any issues.

A two week free trial of the Occupation Heath and Safety Handbook may be accessed at http://ohshandbook.net.au/hot-topics/workplace-bullying.

However, for a detailed understanding and legal advice regarding how to handle workplace bullying, it is advisable that you contact your solicitor. Heavy fines can be imposed under the Occupation Health and Safety Act on small businesses owners for not having reasonable practices in place to prevent bullying, or for not acting to address specific situations in the workplace.

Consultation

The Code also stipulates that consultation with workers and their Health and Safety representatives is carried out during the course of resolution.

A copy of the Draft Code can be found at http://safeworkaustralia.gov.au/Legislation/PublicComment/