Chapter 2 Legislative and regulatory frameworks
Workplace bullying is an issue that is poorly understood
in the community and the variety of approaches and definitions in different
jurisdictions make it difficult for both employers and individual workers to
understand their rights and responsibilities. Further, the overlap and
distinction between workplace bullying, employment law (via the Fair Work
Act 2009) and unlawful discrimination (in all jurisdictions) adds to
I must say when I first heard about this inquiry I felt
quite a lot of relief as workplace bullying has been such a difficult issue for
working women's centres for so many years. I often refer to it amongst my
colleagues as a big black hole. It is the issue that we struggle with the most
of all the industrial issues and workplace matters to find a remedy and to be
able to find something that we can offer the client that comes to us.
The above quotes indicate the frustration and confusion many people feel
when trying to find a legislative or regulatory response to workplace bullying.
This is because there is no express prohibition on workplace bullying in any
Australian laws, nor any one law that can be used to both hold bullies
accountable and provide resolution and remedies for the targets of bullying.
Throughout the inquiry people who have experienced workplace bullying expressed
frustration at the lack of appropriate and satisfactory avenues for resolution
within the existing legislative and regulatory frameworks.
This chapter outlines the legislative and regulatory frameworks that are
relevant to addressing workplace bullying issues. These frameworks fit broadly
into the following categories: work health and safety law, criminal law, anti-discrimination
law, industrial relations laws and workers’ compensation law. Each category of
law will be considered in terms of the resolution and remedial measures
available to individuals and why many people do not have a right to take action
against the perpetrators of workplace bullying or be informed of what course of
action has been taken by government authorities.
Some targets of workplace bullying may have a right to sue their
employer for breach of employment contract. However, the little evidence that was
presented suggested that this course of action is dependent on the terms of a
workers’ employment contract. For that reason, it will not be considered in
Workplace bullying triage
Figure 2.0 charts the triage of legislative and regulatory frameworks which
currently exist in Victoria, including the legal courses of action and
individual rights that arise under each. Although it is specific to Victoria, the
chart is indicative of the broader legislative and regulatory frameworks that
exist across Australian jurisdictions.
Figure 2.0 ‘Triage’ chart for a typical ‘bullying’ claim
Source Ryan Carlisle
Thomas Solicitors, Submission 106, p. 8.
The balance of Commonwealth, state and territory government
responsibilities varies across each of these categories. States and territories
have primary responsibility for work health and safety law, criminal law and
workers’ compensation. The Commonwealth has primary responsibility for
industrial relations and anti-discrimination laws. However, there is also some
overlap in responsibilities – states and territories have anti-discrimination
laws, some states and territories legislate on industrial relations for limited workers, and the
Commonwealth has some criminal powers.
The respective roles of the Commonwealth, state and territory governments
in relation to each of these areas of law are outlined with particular focus on
their roles in enforcing the laws to protect people from, or hold people
accountable for, workplace bullying.
Many stakeholders complained about the failure of the legislative and
regulatory frameworks to meet expectations and provide transparent or effective
resolution or remedial measures in response to workplace bullying.
Work health and safety law
Workplace bullying is primarily a work health and safety (WHS) issue
because it poses risks to the health and safety of those workers who are
targeted. The Australian Council of
Trade Unions (ACTU) contended:
...as workplace bullying occurs in a work setting, which can
affect the health and safety and welfare of workers, it is appropriate that
work health and safety legislation should be applied when addressing bullying
WHS was traditionally associated with the physical health of workers;
that physical hazards, such as a missing guard on a machine, should be managed
to protect the physical body of workers. However, an increased awareness of the
psychological risks of different systems of work has promoted greater
discussion on the mental health of workers. Bullying as a psychological risk
was discussed in chapter 1.
Workplace bullying is predominantly considered to affect the mental
health of people, but can also have adverse affects on physical health. headspace,
the national youth mental health foundation, submitted:
Workplace bullying has a major negative effect on mental
health through depression, anxiety, stress and suicide. It also affects
physical health through tobacco, alcohol and other drug abuse, and heart
Safe Work Australia, the independent statutory
agency with primary responsibility to improve WHS and workers’ compensation
arrangements across Australia, explained that:
All work health and safety laws in Australia recognise
workplace bullying as a work health and safety issue with the responsibility to
prevent workplace bullying covered by the primary duty of care held by
Thus, although there is no express prohibition on workplace bullying in WHS
laws there is an implied duty on employers to protect workers from workplace
WHS law is administered by each of the states, territories and the
Commonwealth for workers within their jurisdiction.
However, on 1 January 2012 the Commonwealth, Queensland, New South Wales, the
Australian Capital Territory and the Northern Territory enacted uniform WHS
legislation. The model Work Health
and Safety Act (the model WHS Act) and model Work Health and Safety Regulations
were adopted in those jurisdictions as part of an ongoing process to harmonise WHS
laws in Australia. At the time of writing, it is widely anticipated that the
South Australian Parliament will also pass the model WHS Act by the end of its
final sitting session of 2012.
As part of that harmonisation process Safe Work Australia explained that
they are also developing model Work Health and Safety codes of practice.
Currently there is a draft model code of practice, Managing the Risk of
Workplace Bullying, in development. During the period of
this inquiry the draft code of practice was being revised in response to
submissions received during a three month public consultation period in 2011.
The implications of the draft Code of Practice will be discussed in further
detail below. However, it is necessary first to understand how the laws operate
In all jurisdictions, including those where the model WHS laws have not
been adopted, the fundamental principles of WHS laws are the same.
It is important to note that they do not give workers who are injured at work,
including those who are bullied, any avenue to personally seek resolution
outside of the workplace, other than to make a complaint to their WHS
Current WHS regimes impose obligations on employers and officers to
ensure the health and safety of workers while they are at work. There are also
obligations on workers to take reasonable care that their acts or omissions do
not adversely affect other workers and to comply with health and safety
requirements at the workplace.
Safe Work Australia explained that under the model WHS Act all parties
to a workplace bullying issue must make efforts to resolve it at the workplace:
The model WHS Act also requires that where an issue like
workplace bullying arises in a workplace, reasonable efforts to achieve a
timely, final and effective resolution of the issue are made using any agreed
issue resolution procedures or if there is not one the default procedure
prescribed by the WHS Regulations.
At the time of writing, issue resolution requirements are also provided for
in existing Western Australian, South Australian and Victorian WHS legislation.
It should be noted that although there is some consistency between the
approaches to issue resolution between the jurisdictions, the specifics of how
an issue should be resolved may differ.
Obligations of employers to prevent
In all Australian WHS laws there is a primary duty of care on employers
to protect, so far as is reasonably practicable, the health and safety of
workers while they are at work.
Although there is no explicit duty on an employer to prevent workplace
bullying in any of Australia’s WHS laws, the Diversity Council of
Australia, Safe Work Australia and SafeWork SA were some of the stakeholders
who asserted that it is implicit in the primary duty of care that an employer
has responsibility for detecting and managing the risks of workplace bullying
because it poses risks to the psychological health of those in the workplace.
That is, the duty to protect the health and safety of workers is not limited to
the physical health of workers, but also extends to their mental health.
SafeWork SA submitted that the inclusion of psychological health in the
definition of ‘health’ in the model WHS Act and the Victorian Occupational
Health and Safety Act 2004 removes doubt that the primary duty of care
extends to the protection of mental health.
They said that the successful prosecution of Brodie Panlock’s employer
for breaching his primary duty of care under the Victorian Occupational
Health and Safety Act 2004 demonstrates that the duty on employers extends
to protecting workers from the risks to their mental health associated with
Dr Moira Jenkins, a private consultant and clinical psychologist who works
with organisations to help them prevent and manage workplace bullying, and Mr
Karl Luke, Partner at Thomsons Lawyers explained in their joint submission that
to satisfy their primary duty of care employers must eliminate all risks to
health and safety at the workplace so far as is reasonably practicable. If
risks cannot be eliminated, the employer must ensure that they are minimised so
far as is reasonably practicable.
Mr Bryan Russell, Executive Director of SafeWork SA noted that this is
the same approach that should be taken to all workplace hazards:
[workplace bullying] should be treated like any other
workplace hazard with the aim of identifying the hazard, assessing the risks
and implementing steps to eliminate or minimise any identified risks.
Some stakeholders argued that the duty on employers to manage the risks
of workplace bullying should be explicitly required in WHS regulations.
Regulations are legally enforceable directions for how a duty holder
must comply with their duty of care in relation to specific high risk hazards
at work. Dr Jenkins and Mr Luke explained that regulations mandate standards of
risks control and are generally introduced when the necessary controls to
manage a risk are known. Mr Luke elaborated:
There is a work health and safety scheme in each state which
is largely self-regulatory. Employers are required to put in place risk control
measures to ensure that risks arising from known hazards are properly
controlled and eliminated or, if they cannot be eliminated, minimised. Yet the
issue here is whether bullying, as a known psychological hazard, is properly
controlled and whether there should be regulation to assist in identifying a
standard. In certain circumstances, it is up to the individual employer to
determine how they control risks in the workplace. Then we have regulations
that impose particular standards in relation to these particular hazards or
risks: [they] tell you what you need to do and what the standard is to ensure
that risks are properly controlled. For example, for confined spaces or falling
from heights or when you dig a trench past a certain depth you must do X, Y and
Z. There is a prescription of what needs to be done to control risks. We think
the same thing can be done with workplace bullying.
The Australian Federation of Employers and Industries (AFEI) argued that
specific regulations are not necessary because employers can currently be
penalised for a breach of their primary duty of care if they do not prevent
Duty on officers to ensure employer
Under all current WHS laws an officer of an employer faces liability if
the employer fails to meet its duty of care. An officer is a person
who is at a substantial decision making level of the organisation, such as a
board member or company director.
At time of writing, Victorian, Western Australian and South Australian WHS
laws do not include an express duty of care on officers. Rather, an officer can
be held to be liable, in addition to the employer, where the employer’s breach of
duty is attributable to the officer’s conduct.
Comparatively, Safe Work Australia and AFEI explained that under the
model WHS Act there is an express duty on officers to exercise due diligence;
that is, to take positive and proactive steps to ensure that the employer
complies with its health and safety duties.
In discussing the importance of this duty, the Department of Education,
Employment and Workplace Relations (DEEWR) submitted:
The officer duty recognises that particular individuals
within organisations are able to influence the culture of the business or
undertaking, including by ensuring that appropriate resources and processes to
eliminate or minimise risks associated with bullying are adopted.
Mr Neale Buchanan, Director of Operations at Workplace Standards
Tasmania, the WHS regulator in that state, commented that the due diligence
duty was a new responsibility in Tasmania. He described the new duty as a
I think the most important change in Tasmania, is the
requirement on officers of organisations—the decision makers at director level,
CEOs, those who influence the operation across the entirety of the business—to
have the duty of due diligence. They have to have reporting mechanisms in
place, they have to do all those things that we would commonly understand as
due diligence and that they would undertake as directors now in financial areas
that they are well familiar with, and it is now extended to health and safety.
I think there is a really strong potential here to focus not so much on the
traditional physical health and safety issues but that due diligence framework
should extend to these areas of mental health and wellbeing.
Obligations of workers to not bully
Under all Australian WHS laws there are also duties on workers to take
reasonable care when at work to avoid adversely affecting the health and safety
of other people. At the time of writing,
in South Australia and Victoria there are also duties on all persons, including
workers, not to recklessly endanger other people at the workplace.
This was highlighted in a recent case in Victoria. In 2006, Brodie
Panlock, a 19 year old waitress, committed suicide in 2006 after enduring
persistent and vicious bullying at work. Following Miss Panlock’s death the
co-workers who had bullied her at work were found to have breached their duty
of care under the Victorian Occupational Health and Safety Act 2004. The
three workers convicted for breaching their duties as employees in that case
were fined between $10,000 and $45,000 each. Notably, the manager of workplace,
who was the company director, was fined for the employer’s breach of duty as
being an officer to whom that breach is attributable.
Analysis of penalties available under all WHS laws provided by Safe Work
Australia indicates that workers across Australia are liable to penalties at
this level and higher if they bully others at work.
South Australia’s Section 55A
As discussed earlier in this chapter, the South Australian Parliament is
widely anticipated to pass the Work Health and Safety Bill 2011 (SA) which
would bring it within the harmonised WHS jurisdictions. However, mindful of this
pending legislative change, South Australia is the only jurisdiction that
specifically refers to and defines workplace bullying in its current WHS laws.
Section 55A of the South Australian Occupational Health, Safety and Welfare
Act 1986 defines workplace bullying as behaviour:
- that is directed
towards an employee or a group of employees, that is repeated and systematic,
and that a reasonable person, having regard to all the circumstances, would
expect to victimise, humiliate, undermine or threaten the employee or employees
to whom the behaviour is directed; and
- that creates a risk
to health or safety.
SafeWork SA explained that:
Section 55A establishes a mechanism to facilitate bullying
investigations and ultimately to give the inspectorate the capacity to refer a
complaint to the [South Australian Industrial Relations] Commission for
SafeWork SA also observed that the Industrial Relations Commission can
assist the timely, resolution of a workplace bullying complaint through
mediation or conciliation.
However, SafeWork SA said that although section 55A provides ‘a useful
framework for dealing with workplace bullying’ there a number of
- workers who have been
bullied cannot apply directly to the Commission for resolution of the matter;
- participation in
mediation or conciliation is voluntary only;
- the Commission cannot
make a determination of whether or not there has been workplace bullying,
whether an employer or worker has breached their duty of care, or whether there
must be a change at the workplace; and
- if mediation or
conciliation fails there are no further avenues of resolution available to the
parties—the only remaining option is prosecution by the regulator of the
employer or an individual worker for breaching their work health and safety
Section 55A only provides a process for the resolution of workplace
bullying complaints; it does not place any duty on employers or workers to
prevent workplace bullying. As there is no duty that must be complied with under
section 55A there is no penalty attached for a breach.
Role of the regulator in enforcing
WorkSafe WA explained that when they receive a complaint about workplace
bullying, an inspector may visit the workplace. To ensure that the employer and
workers are meeting their WHS obligations, the inspector will look ‘at whether
adequate systems and processes are in place to deal with allegations of
workplace bullying’ and whether the employer has responded to the complaint (if
it was reported to them by a worker) at the workplace within a reasonable time.
However, Worksafe WA clarified that ‘it is not the WorkSafe inspector’s role to
facilitate, mediate and/or carry out an investigation into the specific
Under all WHS laws in Australia there are two types of enforcement
measures available to the regulators: compliance notices in the form of
improvement notices and prohibition notices; and prosecution.
A duty holder can be issued with a notice or prosecuted for breaching
their WHS duties regardless of whether there is anyone adversely affected. For
example, Safe Work Australia explained that under the model WHS Act there are
three levels of offences. The lowest level of offence is for non-compliance
with a duty with penalties of up to $50,000 for a worker, $100,000 for an
officer and $500,000 for a body corporate.
Improvement and prohibition notices
Improvement and prohibition notices are issued by WHS inspectors when
they consider that there is a risk at the workplace that is not being managed
properly or that there has been conduct which is in breach of the law. Ms
Yvonne Henderson, the Equal Opportunity Commissioner for Western Australia
explained that when a workplace bullying complaint has been made an improvement
notice may be issued to an employer, requiring them ‘to improve the systems for
preventing bullying in the workplace or to improve reporting and investigating
Prohibition notices on the other hand require the person to whom they
are issued to cease prohibited conduct. If a notice is not complied with,
further penalties apply in addition to the potential penalty for the initial
breach of duty.
An inspector is not compelled by WHS law to issue improvement or
prohibition notices. However, they may choose to in instances where, for
example, complaints of workplace bullying can be resolved at the workplace or
they think it more appropriate to issue a notice than proceed to prosecution.
Penalties for non-compliance
Under all WHS laws the regulator is able to prosecute any party believed
to be in breach of their WHS duty by failing to prevent workplace bullying or,
in the case of a worker, bully another person in the workplace. A breach of a WHS
duty is a criminal offence.
There are significant criminal penalties in WHS laws that a court may
order in convicting an individual or an organisation of breaching their WHS
Safe Work Australia noted that the penalties available under the model
WHS Act are higher than in non-harmonised jurisdictions.
A person who breaches their duty under the model WHS Act is liable for criminal
fines of up to $3 million for a body corporate; $600,000 or five years
imprisonment for an officer or an individual employer;
and, up to $300,000 or five years imprisonment for workers.
These levels of penalties apply in relation to offences ‘of the most serious
kind involving recklessness’.
The AFEI submitted that high penalties also apply for the offence of
recklessly endangering another person at a workplace under the Victorian Occupational
Health and Safety Act 2004. That offence is ‘punishable by a maximum
penalty of over $215,000 and/or five years imprisonment for individuals and, in
the case of corporate offenders, a maximum fine of over $1 million’.
DEEWR submitted that the inclusion of such high criminal penalties in WHS
generally reflects the community’s view that any person who
has a work-related duty of care but does not observe it should be liable to a
criminal sanction for placing another person’s health and safety at risk.
The criminal nature of the penalties and prosecutions under WHS laws
means that the regulator must produce evidence strong enough to prove ‘beyond
reasonable doubt’ that there has been a breach of duty by an employer or
worker. The Government of South Australia submitted that this high burden of
proof is difficult to satisfy in workplace bullying complaints:
While the WHS legislation provides a legislative framework
that deals with bullying as with any other WHS issue, it must be acknowledged
that bullying is somewhat different. There are important differences that arise
from WHS breaches that involve human interaction as opposed to mechanical,
technological or procedural failures. The bullying investigation process has to
assess both covert and overt instances which often appear trivial, but do cause
a risk to health and safety when viewed as repeated behaviours that build over
time. Because of the nature of bullying behaviour, it is often exceptionally
difficult to prove ‘beyond reasonable doubt’ that bullying occurred, as even
overt behaviours are rarely witnessed either individually or electronically.
This is one of the key reasons why bullying is so difficult to prosecute as a
WHS breach under the WHS legislation.
Issues relating to the effectiveness of how WHS laws are implemented and
enforced will be considered in chapter 6.
Codes of practice and guidance
Across Australia specific guidance on workplace bullying is provided by WHS
regulators in codes of practice or guidance materials.
Unlike the previously discussed WHS laws which encapsulate workplace bullying
in general duties of care, codes of practice and guidance material outline
specific standards that duty holders should meet to ensure they satisfy their
duties of care.
In the Australian Capital Territory, Queensland and Western Australia
workplace bullying is addressed in codes of practice.
They provide practical guidance on how employers and workers can comply with
their WHS duties specifically in relation to workplace bullying. The directions
in a Code of Practice are not mandatory, but they do set the minimum standards
that must be met by duty holders. Mr Mark McCabe, Work
Safety Commission of the ACT explained that the current ACT Code of Practice
sets the benchmark of what an employer must do to manage the risks of workplace
As there is no requirement that duty holders must comply with the
directions in a code of practice, a person cannot be prosecuted if they do not
follow any directions set out in the code of practice. However, as they set the
minimum standards that must be met, a duty holder must be able to show that the
actions they took to meet their duties under the legislation in relation to
workplace bullying provided the same or a higher standard of health and safety
than would have been provided had they followed the directions in a code of practice.
And although there is no requirement that a code of practice must be
complied with, a code of practice is automatically admissible in court
proceedings as evidence of what an employer should have known about for
managing the risks of workplace bullying. 
The ACT Government stated for that reason, duty holders should comply
with a code of practice unless there is another solution for addressing
workplace bullying which achieves the same or a better result.
In all other jurisdictions, including South Australia, workplace
bullying is addressed in guidance material. Dr Jenkins and Mr Luke
explained that these guides do provide practical guidance, in a similar way to
codes of practice, to assist with the identification and management of risks of
workplace bullying. However, unlike codes of
practice, guidance materials are not recognised in WHS legislation.
The ACT Government commented that their current Code of Practice is
based on the guidance material that was developed by the Victorian regulators
and subsequently adopted by the New South Wales regulator.
This indicates that there is some consistency across some jurisdictions.
Model Code of Practice: Managing
the Risk of Workplace Bullying
Safe Work Australia explained that the new national model Code of
Practice that is being drafted is largely based on the current codes of
practice and guidance materials in operation across Australian jurisdictions.
It includes a proposed definition of workplace bullying as well as practical
advice about using a risk management approach to prevent workplace bullying and
how to respond if bullying occurs. SafeWork SA expanded on
this, explaining that a Code of Practice under the model WHS laws is ‘intended
to provide practical guidance for duty holders to achieve standards of health,
safety and welfare’.
The draft Code provides significant practical guidance to employers and
workers about prevention and resolution strategies. The Committee supports the
draft Code in its current form, and encourages the members of Safe Work
Australia to progress the finalisation and adoption of the Code in each
||The Committee recommends that the Commonwealth Government,
through Safe Work Australia urgently progress the draft Code of Practice:
Managing the Risk of Workplace Bullying to a final version and that members
of Safe Work Australia adopt the Code in all jurisdictions.
||The Committee recommends that Safe Work Australia work with
all jurisdictions to actively promote and implement the Code of Practice and
ensure it is embedded in workplaces.
Elevating employers’ obligations
and standards to nationally consistent regulation
Throughout the inquiry, many stakeholders advocated that the standards
provided in the code should be elevated to establish clear obligations
prescribed in regulations. Reflecting this
sentiment, Mr Kevin Harkins from Unions Tasmania said:
In our view, while the code of practice will be helpful, it
is just not strong enough. It will be similar to a policy, with lip service but
no real implementation in the workplace.
Safe Work Australia explained that under the model WHS Act, codes of practice
‘play an important role in explaining the requirements of the WHS Act and
Regulations’. While a duty holder is required to meet their duties under the
legislation in a way that ‘provides a standard of WHS that is equivalent to or
higher than the standard required in the code’, they are not obligated
to do so in the way recommended in the code. Safe Work Australia clarified:
Courts may regard a Code of Practice as evidence of what is
known about a hazard, risk or control and may rely on it in determining what is
reasonably practicable in the circumstances to which the Code of Practice relates.
There is no requirement that Codes of Practice be complied with.
Dr Jenkins and Mr Luke explained that regulations mandate standards of
risks control and are generally introduced where the necessary controls to
manage a risk are known. They contended that
placing an obligation in WHS regulations requiring employers to take action to
control specific identified workplace bullying risk factors ‘would provide
clarity as to at least the minimum identified risk factors that need to be
They also submitted:
Establishing (by way of regulation) standards for controlling
some of the identifiable risks across jurisdictions would not only raise
awareness of what the specific risks are, but also raise awareness of the need
for appropriate behaviours and the potential for serious psychological health
impacts of workplace bullying.
In response to this point, Safe Work Australia stated:
Although [elevating the Code into regulation] would have the
benefits of raising awareness in the community, the concern is that specific
regulations on workplace bullying would do no more than duplicate the primary
duty in the model WHS Act.
Some employer groups strongly refuted that there is a need for further
regulation. In explaining why there
should not be specific WHS legislative provisions, or a code of practice, for
workplace bullying, Mrs Carolyn Davis from the Australian Chamber of Commerce
and Industry (the ACCI) said:
We have been saying that the good occupational health and
safety outcomes in the workplace at the coalface are from cultural change
rather than from strict regulation. ... As a
guide [the Code] can provide a lot more structure and help people deal with
this as a shared responsibility. It is important that everyone is involved in
this, that it is not seen to be a regulation that falls on top of people.
There are calls for nationally consistent obligations on employers,
established in WHS regulations, from individuals who have personally
experienced workplace bullying, or supported a family member through its
effects. The parents of Brodie Panlock argued:
I think you need one law for one country, not each state.
That is what the problem is: each state is slightly different. It is like the
railway lines: they do not match. They have to match. There has to be
continuity across the whole board. We are not talking about politics or
anything like that; it is people. The laws are all different, or slightly
different, in each state. I have spoken to lawyers down here, and when they go
to Queensland it is different again. Why can't there be one straight across the
board? We are Australians, aren't we? 
Bullying is no different in Victoria, Queensland or any other
state in Australia. Bullying is the same here as it is everywhere else and that
is why I would like to see it as a national law. So if you live in Victoria
there is the chance for jail, but why should Queensland, Tasmania and every
other state be left out?
Similarly, at one of the Committee’s individual impact statement sessions,
an individual worker advocated:
all workplaces and all bosses should be obligated by
legislation to take complaints of bullying such as mine seriously without irrelevant
and dismissive insult.
The Committee believes that employers’ obligations established under the
draft Code should be elevated to establish clear obligations prescribed in
regulation. The Committee believes regulations can be developed that address
the concerns expressed by the business community. Regulations should set a minimum
standard of action that must be taken to minimise the risk of bullying in the workplace
through thoughtful risk control measures.
Regulations that set minimum standards, and which are strongly supported
by a code of practice that provides practical advice on how to meet these
standards, would not place any additional requirement on employers. They would
merely impose specific obligations outlining what employers should already be
doing to comply with their duty of care.
||The Committee recommends that the Commonwealth Government
seek agreement through Safe Work Australia for the development and
implementation of model Work Health and Safety Regulations that capture the
minimum requirements for managing the risks of workplace bullying, applicable
to all workplaces, as currently established in the draft Code of Practice:
Managing the Risk of Workplace Bullying.
Some cases of workplace bullying can also be prosecuted under criminal
legislation. Although WHS laws impose criminal punishments, they are distinct
from criminal legislation in that they are enforced by WHS regulators.
Comparatively, it is up to the police to enforce criminal law or legislation.
Like WHS law, criminal legislation is the responsibility of governments in
each jurisdiction. Behaviour that may be seen in serious cases of workplace
bullying can be prosecuted under criminal legislation, and so under the
criminal justice system, of each jurisdiction. The Victorian Government
recently amended their criminal legislation to remove doubt that workplace
bullying can be a criminal offence.
Victoria and Brodie’s Law
When announcing this inquiry into workplace bullying, the Prime
Minister, the Hon Julia Gillard MP, and the Minister for Employment and
Workplace Relations, the Hon Bill Shorten MP, were accompanied by Mr Damian and
Mrs Rae Panlock.
Brodie Panlock’s case gained public attention when, in 2011, the
Victorian Government made amendments to the Crimes Act 1958 to remove
doubt that serious instances of bullying, such as that experienced by Brodie,
are criminal offences. The amendments, colloquially known as Brodie’s Law, were
introduced in response to community outrage at the apparent inadequacy of
sanctions against the parties who bullied Brodie. Although the men who bullied Brodie
were fined for breaching their health and safety duties by bullying her, they
were not charged with serious criminal offences under criminal legislation. 
DEEWR explained that Brodie’s Law amended the offence of ‘stalking’ in
the Victorian Crimes Act 1958 to ‘expressly include making threats,
using abusive or threatening words, performing abusive or offensive acts, or
acting in a way that could reasonably be expected to cause the victim harm or
Brodie’s Law did not create an offence of workplace bullying. The
behaviours referred to under the law are criminal offences regardless of
whether they are engaged in at a workplace or elsewhere. However, the ACT
Government noted that Brodie’s Law removes doubt that stalking covers serious
instances of workplace bullying and that perpetrators face up to 10 years
Ryan Carlisle Thomas Solicitors (RCT Solicitors) noted that Brodie’s Law
also made amendments to the Person Safety Intervention Orders Act 2010 (Vic)
so that it ‘contains mechanisms whereby certain orders may be obtained to
protect those who are subjected to behaviour often associated with “bullying”,
such as stalking, among other things.’
The Western Australian Commissioner for Equal Opportunity, Ms Yvonne
We note...a victim of stalking in the workplace is still
required to lodge a complaint with the police and to go to court to seek an
intervention order and that the prosecution must prove its case beyond
reasonable doubt in order to get a conviction. While such a law making bullying
a criminal offence may provide a further avenue of redress for victims, the
effectiveness of that remains to be seen. The higher standard of proof required
in the criminal justice system, requiring the intervention of the courts and
the police, may not translate well into the workplace environment. In our view
criminal sanctions alone are unlikely to be an adequate deterrent to workplace
Mrs Moira Rayner, the Deputy Chair of the Workplace Relations Section of
the Law Institute of Victoria said that a law such as Brodie’s Law can be
ineffective because targets of bullying will not use it for fear of retribution
from their bullies:
A person who has actually been bullied has been disempowered
and they cannot use, as in Victoria's Brodie's law case, the access that is
offered to them through the courts for a restraining order or through the
police, because they are too browbeaten, downtrodden and afraid to do so,
knowing—and they do know—they will be victimised for raising a matter for which
the possible consequences will be a prosecution, conviction and maybe a jail
The ACTU noted that the Brodie’s Law ‘does not and cannot address the
majority of bullying behaviours, nor the workplace risk factors which can lead
to such behaviours’.
Mr Damian and Mrs Rae Panlock called for Brodie’s Law to be made a
national law. Mrs Panlock argued that
there should be one law for all of Australia because currently the laws are slightly
differently in each jurisdiction. Harmers Workplace Lawyers
also supported a proposed nationalisation of Brodie’s Law.
A nationally consistent definition of workplace bullying across
Australia that secures the rights of all Australian workers to be safe from
bullying was almost universally supported in evidence to the inquiry.
However, the specific objective of a national Brodie’s law cannot be met simply
by the introduction of legislation by the Commonwealth.
The Alannah and Madeline Foundation noted constitutional limitations to the
Commonwealth’s power which prevent it from legislating on anti-social behaviour
such as bullying other than behaviour which involves electronic means.
Thus, ‘in approaching legal issues it is highly desirable to develop a
co-ordinated approach with States and Territories’.
The Commonwealth and cyber-bullying
Although constitutional limitations mean that the Commonwealth criminal
law cannot address many instances of workplace bullying, Commonwealth does
extend to prosecution of cases of cyber-bullying because it does deal with
offences relating to the electronic transmission of material.
The Association of Professional Engineers, Scientists and Managers
Australia stated that of 3.8 per cent of its members who reported that they
were bullied at work said that they had experienced cyber-bullying.
Similarly, Master Grocers Australia submitted that its members, who are
employers, reported a significant increase in the complaints from employees
DEEWR explained how the Commonwealth Crimes Act 1914 could be
used to address cyber-bullying:
Serious cases of cyber-bullying may be covered by a
Commonwealth offence of using a carriage service, such as the internet or
telephone, to menace, harass or cause offence, which carries a maximum penalty
of three years’ imprisonment.
Other state and territory criminal
Beyond the highly publicised enactment of Brodie’s Law in Victoria, criminal
laws in other states and territories capture the behaviours and conduct typical
of serious workplace bullying.
WorkSafe WA confirmed that ‘behaviours that constitute workplace
bullying can be treated as a case of stalking under the WA Criminal Code [Compilation
Act 1913]’ in the same way that they can under Brodie’s Law in Victoria.
The AFEI commented that the WA Criminal Code would also address assault or
threats in the workplace.
The ACT Government submitted that a number of offences under the ACT Crimes
Act 1900 ‘may apply in circumstances where an employee is experiencing
workplace bullying’. Those offences include
inflicting bodily harm, assault, stalking and aiding or abetting the suicide,
or attempted suicide, of another.
Evidence was not received from other state or territory governments
about how their criminal laws might apply to bullying cases. However, the AFEI outlined
the criminal laws in all other states and territories that could address
behaviours that might be seen in serious cases of workplace bullying:
- the NSW Crimes Act
1900 provides for the offences of assault, both that occasioning and not
occasioning actual bodily harm, and threats or abuse directed at an employee that
induces a reasonable fear of actual harm could also be an offence;
- the Queensland Criminal
Code 1899 provides the offences of physical assault causing injury or
discomfort, torture which deals with the infliction of mental, psychological or
emotional pain and stalking.
- the South Australian Criminal
Consolidation Act 1935 provides the offences of assault and the threat of
assault, stalking and causing physical or mental harm and serious harm to
- Tasmania’s Criminal
Code Act 1924 has offences of common nuisance, committing an unlawful act
intended to cause physical harm and assaults.
- the Northern
Territory Criminal Code Act has offences for common assault, including
the threat of physical harm, unlawful stalking and criminal defamation.
Although the above laws are not uniform, they show that there are
already criminal responses to workplace bullying available across Australia.
However, Mr and Mrs Panlock commented, the criminal laws that are in place may
not serve enough of a deterrent to bullying behaviour if they are not enforced.
Ms Robin Banks, the Anti-Discrimination Commissioner for Tasmania,
explained the objective of anti-discrimination law:
The nature of discrimination law is that it is about people
being treated in a particular way because they have an attribute that has
traditionally been disadvantaged.
Anti-discrimination laws may come to bear on instances of workplace
bullying when the bullying arises as the result of the target possessing a
designated protected attribute.
The requirement that bullying arises as the result of an attribute limits
the scope of behaviour proscribed in the workplace. Harmers Workplace Lawyers suggested
that, ‘racial taunts would be an example of workplace bullying that could be pursued
via discrimination laws.’
The grounds of discrimination, or ‘protected attributes’, are prescribed
in anti-discrimination legislation in each jurisdiction.
DEEWR noted that the Commonwealth anti-discrimination laws, which provides
protection to everyone in Australia, protect people from being bullied at work
because of their:
- race (including
attributes such as colour, descent and national or ethnic origin);
- that a person is or
has been an immigrant;
- marital status;
- pregnancy or
- disability (including
carers and associates); and
The range of protected attributes in state and territory
anti-discrimination laws is much broader than under the Commonwealth laws. For
example, it was noted that the Victorian law covers gender identity and sexual
orientation in addition to those attributes covered by Commonwealth
legislation. And the ACT Government noted
that its anti-discrimination laws also protect attributes including political
conviction and industrial activity. The Office of the
Anti-Discrimination Commissioner (Tasmania) stated that that the Tasmanian Anti-Discrimination
Act 1988 ‘prohibits direct and indirect discrimination against a person or
group of people on the basis of’ 20 different attributes, including religious
activities or beliefs and irrelevant medical or criminal records.
The Anti-Discrimination Commissioner for Tasmania commented that the
there is a specific offence in the Tasmanian law which is akin to bullying more
broadly than other discrimination offences:
[there is an offence] which is titled 'prohibited conduct', [which]
deals with a scope of conduct that 'offends, humiliates, intimidates, insults
or ridicules'. At the moment it is only expressly unlawful...if the
discrimination is on the basis of any of seven out of the 20 attributes:
gender, marital status, relationship status, pregnancy, breastfeeding, parental
status or family responsibilities. There is a proposal that came out of a review
done several years ago to extend [that section] to protect all 20 attributes
under the act.
However, in no jurisdiction are the protected attributes broad enough to
capture all types of workplace bullying, nor could protecting specified
attributes capture all types of workplace bullying; quite often bullying is not
engaged in because of a person’s attribute.
Individual right to seek remedies
Anti-discrimination laws enable a worker who has been bullied on
discriminatory grounds to make a complaint to the Australian Human Rights
Commission or state-based anti-discrimination commissioner. That complaint may
be about the individual workers who carried out the bullying or their employer
who can be held vicariously liable for discriminatory workplace bullying.
DEEWR explained that if the
workplace bullying complaint cannot be resolved through mediation or
conciliation, the bullied worker may commence court proceedings to seek a
[i]f a complaint is upheld, the court may order any remedy it
sees fit including, for example, ordering remedial action, an apology and
monetary compensation or a combination of remedies.
Industrial relations law
Since 1 January 2010, the Commonwealth has had responsibility for the
national workplace relations system which covers most Australian workers and
This means that the Commonwealth Government has responsibility for
industrial relations, as legislated in the Fair Work Act 2009 (the Fair
Work Act), for:
employment by constitutional corporations, and in:
- Victoria, ACT &
NT—all other employment
- NSW, Qld & SA—all
other private sector employment (from 1 January 2010)
- Tasmania—all other
private sector and local government employment (from 1 January 2010).
The only workers not covered by the national system are:
- those employed in the
state public sector in Western Australia, New South Wales, Queensland, South
Australia and Tasmania;
- those employed in
local governments in Western Australia, New South Wales, Queensland and South
- those employed by
non-constitutional corporations in the private sector in Western Australia.
The Fair Work Ombudsman website adds:
sole traders, partnerships, other unincorporated entities and
non-trading corporations and their employees continue to operate under the WA
The Fair Work Australia website describes the effect of a national
workplace relations system:
Employers and employees in the national system have the same
workplace rights and obligations, regardless of the state they work in.
The object of the Fair Work Act includes:
enabling fairness and representation at work and the
prevention of discrimination by recognising the right to freedom of association
and the right to be represented, protecting against unfair treatment and
discrimination, providing accessible and effective procedures to resolve
grievances and disputes and providing effective compliance mechanisms.
This objective appears, at least at first glance, to provide some remedy
to targets of workplace bullying.
Fair Work Act 2009
Organisations and individuals referred to elements of the Fair Work
Act that can be used to protect workers from some types of workplace
bullying. The general protections
provisions are commonly utilised by workers to seek resolution and remedies in
bullying cases, in both cases where they have left the workplace and are
seeking unfair dismissal compensation or remain at the workplace and are
seeking compensation for adverse action taken against them.
Protection limited to prescribed
The Fair Work Act protects workers from being bullied because
they have exercised or enforced certain workplace entitlements. However, that
protection is limited to workplace rights that are listed in the legislation.
Ms Yvonne Henderson, the Commissioner for Equal Opportunity in Western
Australia, succinctly explained the operation of the general protections
provisions and their limitations in protecting workers from bullying:
At the Commonwealth level, the [Fair Work Act] allows
an employee to lodge an adverse action or unfair dismissal application against
an employer in connection with the exercisable workplace right—for example, the
right to be protected from bullying under state occupational health and safety
law. Unfortunately, this means that the emphasis of the fair work section of
the act is on the employer's adverse response to the employee asserting the
right, rather than the existence of the bullying itself. If an employee does
not assert the right, there is nothing necessarily under the Fair Work Act
which would lead to action being taken.
The onus of proving adverse action because of a workplace right is on
the worker making the complaint.
Individual resolution and remedies
Much of the support for utilising the Fair Work Act to respond to
workplace bullying complaints focussed on the individual civil remedies that
the Act provides.
If the bullying experienced by a worker is on grounds that constitute a
breach of the Fair Work Act, they can apply to Fair Work Australia for
assisted resolution of the matter. Fair Work Australia can deal with the
dispute by conciliation or mediation, during which recommendation can be made
on how the matter can be resolved.
The Northern District Branch of the Construction, Forestry, Mining and
Energy Union explained that if the issue is not resolved through the
conciliation process because the parties cannot agree to an outcome or the
employer refuses to participate, the worker is able to pursue the matter in
DEEWR noted that the court can make any order that it sees fit,
including monetary penalties of up to $6,600 for an individual.
The exception is where the matter involves an unfair dismissal claim. RCT
Solicitors noted that in such a case the available remedies are restricted to
reinstatement and capped compensation for economic loss.
They suggested that the unfair dismissal remedies are not the best response to
workplace bullying because they issue only after the bullied worker has left
Workers’ compensation law
Workers’ compensation can be described as a system that complements WHS.
Whereas WHS is about risk management to ensure people are safe from harm or
injury at work, the purpose of workers compensation is to compensate people for
any harm or injury that they sustain in the workplace.
Workers’ compensation laws can give some workers injured or harmed by
workplace bullying an entitlement to compensation. It is not available to all
workers though. Safe Work Australia submitted:
workers’ compensation is only available to about 88 per cent
of workers and is not available to the self-employed.
The ACCI commented:
[d]epending on the harm or injury suffered as a result of
bullying, statutory compensation may be available through relevant “no-fault”
workers’ compensation schemes applying in each jurisdiction.
The principle of ‘no-fault’ is explained by Safe Work Australia:
...to be eligible, workers only have to prove that their
injuries were work related - they do not need to prove negligence on the part
of an employer.
Workers’ compensation is regulated independently by state, territory and
Commonwealth governments for workers within their jurisdiction. However, the schemes
are broadly similar between jurisdictions.
Worker must be able to show that
injury is work-related
In order to make a successful workers’ compensation claim an injured
worker must be able to show, on the balance of probabilities, that the harm or
injury occurred in the course of their employment.
Although this requirement seems reasonable because the objective of
workers’ compensation is to compensate only for work related injuries, it could
create a barrier to compensation for many people harmed or injured by workplace
JobWatch suggested that because the injuries that typically arise from
workplace bullying are psychological in nature, such as stress, depression and
anxiety, it is difficult for a person to point to evidence that proves the
injuries exist or prove that they are work related.
Similarly, headspace noted that this is in part because it is difficult to
substantiate claims of bullying, particularly in those cases where the bullying
is ‘insidious or underhanded’.
Similarly, the Government of South Australia commented:
Because of the nature of bullying behaviour, it is often
exceptionally difficult to prove ‘beyond reasonable doubt’ that bullying
occurred, as even overt behaviours are rarely witnessed either individually or
electronically. This is one of the key reasons why bullying is so difficult to
prosecute as a WHS breach under the WHS legislation.
By contrast, if a worker suffers a physical injury, it is much easier to
identify and point to the physical cause of that injury at the workplace.
JobWatch added that because it is difficult to clearly shown that the
harm or injury is work-related, workers’ compensation claims for workplace
bullying injuries are often denied by insurers in the first instance. They stated
that this leaves the injured worker with the option to abandon their claim or
take the matter to court which can entail prohibitive costs.
Reasonable management action
A number of submissions drew attention to what could be a fine line
between workplace bullying and reasonable management action where reasonable
management action was perceived to be bullying
or where management action had crossed the line into bullying. 
The Victorian Trades Hall Council (VTHC) explained that workers’ compensation
laws do not entitle workers to compensation for mental harm resulting from
reasonable management action.
RCT Solicitors suggested that the exclusion of injuries resulting from
reasonable management is particularly problematic in relation to workplace
Stress arising out of management action taken on reasonable
grounds and in a reasonable manner is excluded from compensation. The
complication is that the line between bullying and legitimate discipline, or
other specified action, is a fine one indeed and the hurdle of proving that
action was taken unreasonably will often deter the aggrieved worker from
pursuing the matter.
The VTHC argued that this exclusion heightens the proof threshold which
claimants must meet and diminishes their chances of making a successful claim. 
Furthermore, the Community and Public Sector Union asserted that this exclusion
unfairly restricts a worker’s right to compensation:
Whilst recognising that managers have certain rights to
manage their employees, the manner in which those rights are executed can
constitute bullying behaviour where an already stressful situation is
compounded by the manner in which the actions are handled by a manager.
The Victorian Automobile Chamber of Commerce (VACC) said that there are
many cases where workers claim to be bullied when they have simply been
It is a common experience for VACC members that employees
claim to have been bullied when they have actually been either disciplined or
just asked to get on with their work. One VACC member reported an employee in
tears because he had been asked to stop distracting other workers and return to
his workstation. The worker complained to the Human Resources Manager that he
had been bullied.
This example highlights the importance of ensuring that
managers are free to manage their workplaces appropriately. Overly prescriptive
regulation can only lead to more workplace disputation and confusion.
Common law rights
Solicitors and industry stakeholders commented that workers may be able
to sue their employer under common law for a workplace bullying injury if the
employer was reckless or negligent in not preventing the bullying.
However, workers’ compensation laws expressly restrict, or in some
jurisdictions prevent, injured workers from suing their employer for damages
under the common law.
Safe Work Australia stated that in South Australia and the Northern
Territory workers’ compensation legislation extinguishes any right of injured
workers to bring a common law claim for damages.
In other jurisdictions injured workers cannot bring a common law claim
for damages against their employer unless the injury is of a level of
seriousness prescribed in legislation. For example, RCT
Solicitors explained that in Victoria:
...even if it can be shown that the risk of injury was
foreseeable, an employer can be sued for damages only if the worker has
suffered a serious injury, which is, for most purposes, deemed to be either a
30% impairment or more.
Disconnect between workers compensation
and work health and safety laws
The ACTU stated that despite the complementary way in which the WHS laws
and workers compensation appear to work, there is a disconnect between the
regimes. They said this arises because a successful workers’ compensation claim
for a workplace bullying injury does not lead to an employer or individual
‘bullies’ being held responsible for the injury. Therefore, there is no
accountability under WHS laws for employers who have breached their duty by not
preventing the bullying or individual workers who actually engaged in the
This disconnect suggests that workers’ compensation laws provide little
incentive for an employer to improve their risk management and meet their WHS
duties. Indicative of this, the VTHC submitted that even where there is a
successful workers compensation claim, ‘the bullying behaviours which caused
the injury are rarely addressed and prevented from [re]occurring’.
The ACTU suggested that a better connection between workers compensation
and the enforcement of WHS duties would provide better outcomes for injured
Workers in all Australian jurisdictions are protected against workplace
bullying by a variety of existing legislative and regulatory frameworks. These
frameworks encompass WHS law, criminal law, anti-discrimination law and
industrial law as well as rights under common law and workers’ compensation
when protections fail.
However, none of these frameworks provide an ‘all in one’ response to
workplace bullying; that is, none provide both universal protection and
recourse. Thus, workers are left to navigate the overlapping frameworks, which
can be frustrating and confusing for targets of workplace bullying. The
variation across jurisdictions in each of these areas creates more confusion
The ongoing harmonisation of Australia’s WHS laws will improve clarity
about the protections that all workers have from workplace bullying. However,
these laws alone cannot meet all people’s expectations of how the law should
address workplace bullying. Not least because there is a lack of transparency
to allow a complainant to know what action has been taken by a regulator. Also,
the high burden of proof that must be satisfied in criminal prosecutions under WHS
laws mean that convictions are unlikely, particularly where the bullying has
not been overt.
Remedies for bullied workers available under anti-discrimination,
industrial relations and workers’ compensation laws are limited because of the specific
objectives of those laws. Navigating their way through these processes with
little prospect of obtaining the types of remedies sought places further strain
Attempting to access workers compensation could be particularly
traumatising for a bullied worker because of the difficulties they encounter in
trying to prove that their injury is work related. This trauma is no doubt
exacerbated for those people who have an unsuccessful claim and are not able to
use the common law to sue their bully for damages.
The next chapter considers how legislation is translated into practice
through workplace policies and procedures that seek to prevent and redress