A damning Parliamentary inquiry into allegations of bullying in WorkCover NSW has highlighted the gaps that remain in effective protection against workplace bullying for many state based employees.
As the state-based regulator of occupational health and safety (including as it relates to workplace bullying) WorkCover bears the responsibility for recognising and investigating workplace bullying and promoting compliance in other workplaces.
Ironically however, WorkCover has been subject to ongoing scrutiny about alleged bullying and harassment within its own workplace.
According to the report, WorkCover “has not grasped the seriousness of bullying within its own organisation [let alone] recognised the seriousness of this issue in other workplaces.”
Public Sector Employees – limited options
Leaving public sector employees at the mercy of an organisation marred by “doubts over its capacity to perform its role as the workplace regulator” demonstrates the limited options available to state-based employees who are the victim of workplace bullying.
Public sector bullying victims do not have recourse under the the FW Act’s bullying laws because state government departments do not meet the precondition of being a “constitutionally covered business”.
This was recently highlighted by the dismissed bullying application made by a public school teacher in WA.
Various state based IR tribunals and legislation currently form the safety net for public sector employees, however the report calls on the introduction of further anti-bullying legislation to bridge the gap left by the Fair Work Act and other state work health and safety legislation.
For hundreds of employees the Report was simply confirming what they already believed.
However of concern for employers is now the wide-reaching effects of heightened scrutiny into workplace bullying.
Prompted by media and parliamentary scrutiny into allegations of workplace bullying within WorkCover, the catalyst for this most recent Report was the ‘harsh, unjust and unreasonable’ dismissal of a WorkCover employee in June 2013 with a workplace investigation that was characterised as a ‘witch hunt’.
The Report contains a number of conclusions about “systemic issues relating to the management of bullying allegations within WorkCover and the broader public sector”.
The Committee expressed ‘deep concern’:
“…by evidence that alleged widespread use of punitive processes, poor management practices, authoritarianism among senior managers, and denial by senior management that a significant problem of bullying exists within the organisation.”
The Report made 13 recommendations in total, including the following:
- WorkCover should publicly report reliable data on workplace bullying within the organisation on an annual basis;
- WorkCover should ensure that investigations of bullying complaints within WorkCover are conducted independently;
- WorkCover should ensure a workplace Code of Conduct is implemented and enforced;
- That the Parliament enact laws which protect all workers in the state, including injured workers, from workplace bullying, and that such laws be based on the National Occupational Health and Safety Commission’s Draft National Code of Practice;
While specific to this Report, these recommendations could have potentially far reaching implications for many employers in the future.
Takeaway points for employers
Intense media and public scrutiny of workplace bullying is not going away any time soon.
As demonstrated by the NSW Parliamentary Committee’s Report, gaps in the anti-workplace bullying framework continue to be identified.
Despite not covering all Australian workplaces, the introduction of the FW Act’s new workplace jurisdiction has certainly contributed to heightened public awareness.
Given the level of public discussion about workplace bullying, it is inevitable that the wheels of legal reform will continue to turn.
The anti-workplace bullying framework continues to be a case of ‘watch this space’.
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 General Purpose Standing Committee No. 1 Allegations of bullying in WorkCover NSW 19 June 2014