New bullying legislation – when defence is not the best form of attack

Katriina Tahka
Topics Inclusion

The introduction of new workplace bullying legislation has seen most traditionalists running for the usual playbook in response – telling employers they need to commit even more time and money to building defensive risk mitigation strategies to try and avoid liability. Yes, employers have a legal responsibility to prevent bullying in their workplace – but is this really the most efficient and effective response? 

On 1 January 2014 new anti-bullying provisions under the Fair Work Act came into effect.

Any new workplace legislation is always accompanied by much consideration of the potential impact on employers (and to a lesser extent on employees) and what employers will need to do differently to minimize the risk of liability under the new legislation.

As is usually the case, most of the risk mitigation strategies currently being advocated seem to be primarily focused on employers spending even more time and money conducting risk assessments and then designing strategies to try and avoid liability by reviewing policies and procedures, conducting compliance training and ensuring robust incident reporting and investigation processes are in place to deal with complaints. That is, a defensive approach to the new anti-bullying measures is commonly being advocated.

Workplace bullying occurs when an individual or group of individuals repeatedly behaves unreasonably towards a worker or a group of workers at work and the behaviour creates a risk to health and safety.

What appears to be missing from the traditional ‘risk mitigation’ approach is any focus on educating employees and leaders about inclusive behavior and creating a positive workplace culture that encourages employees. 

More broadly this reflects the generally low level of understanding of the role that diversity and experienced diversity practitioners can play in contributing to prevention of workplace incidents and injury by creating a workplace culture where tolerance and respect for diversity make bullying an unacceptable and aberrant behavior.

Diversity practice and labour law are not commonly thought of as being in the same field but in fact there is an important complementary interrelationship between the two disciplines which can intersect to the benefit of both employers and employees.

One good example is workplace flexibility.  The Fair Work Act and EBAs establish a framework for requesting and implementing flexible working arrangements to the mutual benefit of employers and employees; however diversity has driven understanding of the importance of flexible work in maintaining a diverse, adaptive and sustainable workforce.  That is, the business benefits as well as the organisational change required to create a culture where flexible careers are possible and valued.

There is no reason why the same approach cannot be taken to effectively prevent bullying in the workplace.  That is, the legislation sets the boundaries of what behaviour is unacceptable in the workplace and the consequence of any breach, and employers focus on fostering a positive and inclusive workplace culture.

Attempting to deal with workplace bullying by only approaching it from a traditional incident investigation and reporting model fails to deal with the underlying (diversity) issues and may indeed fail to deal with the culture and behaviours that created the risk to health and safety in the first place, leaving the workplace at risk of repeated bullying behaviour. Employers should take the opportunity that the new legislation presents to change workplace culture for the better.

About Katriina Tahka

As Director Partnerships & Sponsorship, Katriina is responsible for developing and maintaining new and existing partnerships to support DCA initiatives such as research and events.

Katriina brings to DCA a deep understanding of the complex practical and legal diversity landscape having practiced for more than 15 years in workplace relations as an employment lawyer in top tier national law firms and also in-house in a large financial services organisation.

Whilst working in-house, Katriina was given the opportunity to move into diversity strategy and practice – and has never looked back! Katriina was appointed the national Head of Talent Management and Diversity at AMP.  Katriina was responsible for introducing a number of key diversity initiatives including the building of an on-site child care centre, increasing paid parental leave, purchase annual leave scheme and ensuring that diversity principles and practice were embedded into talent management practices.

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