Coalition Members’ Dissenting Report—Mr Rowan Ramsey MP; Mrs Karen Andrews
MP; and Mr Alan Tudge MP
The Coalition Members of the House of Representatives
Education and Employment Committee, Mr Ramsey, Mrs Andrews and Mr Tudge wish to
emphasize Australia should reject the notion that bullying in the workplace is
‘normal’ or that the issues presented by workplace bullying are too difficult
Throughout the course of this inquiry, the Committee learned
from many affected individuals the tragic outcomes of unresolved conflict
within the workplace. While these cases are not a measure of the extent of
bullying in Australia, it is clear that unacceptable bullying does occur in
workplaces and can be significantly degrading on people’s lives.
Places of work are full of complex relations and different
personalities. The Coalition Members recognise that there is frequently great
difficulty in determining whether workers have been targeted for unfair abuse
or whether those who claim injury have an unreasonably low threshold to
legitimate criticism. At the same time it must also be recognised that while
workers may be more sensitive than the average to criticism that does not mean
their injuries are less real.
The parallels to a workplace accident caused by a missing
guard were frequently used throughout the inquiry as an example of how injuries
caused by workplace bullying should be treated. It is however worth considering
that determining whether a safety guard is missing is a far clearer task than
determining what was or was not said in the place of employment, and whether
that constitutes an unacceptable behaviour.
The fact that allegations of bullying can be relating to
affairs where there may be no witnesses, means that recommending any actions to
government should be taken with great care lest otherwise innocent parties be
damaged by unwarranted action. The Committee heard repeatedly that workers
wrongly accused of bullying can be damaged in a similar way to those who are
The Coalition Members of the Committee are broadly in
support of many of the findings and recommendations of the majority of the
Committee. However they were not able to support every recommendation and
comment and take this opportunity to highlight our primary points of
The Coalition Members reject the idea that the best way to
address workplace bullying is to introduce another raft of inflexible
compliance to all parties including employers who are struggling to meet the various,
vagarious and expensive requirements of three levels of government already.
In fact the Coalition Members believe moves to introduce
formal regulations are likely to be counter-productive. In that circumstance
employers are more likely to see compliance to regulation as a signal to do the
bare minimum to meet the ‘pass mark’ and compliance regimes are much more
likely to be industry standards developed to tick the boxes instead of finding
adaptive and productive solutions to individual workplaces.
Instead they strongly advocate that the best chance of
achieving real outcomes in this area is to promote the positive benefits to
business of harmonious, caring and co-operative workplaces. The facilitation of
best possible practice will work hand in hand with a focus on high
productivity. Simply put, a happy workforce is likely to produce the best
results for all parties.
By taking a positive approach rather than a punitive path to
workplace bullying the Coalition Members believe significant improvements in
workplace culture are far more likely.
While recourse to substantial penalties for lack of
attention to the issue of bullying may seem a viable path to take, in the
members’ opinion penalties are also far more likely to make employers reluctant
to seek outside advice on how to deal with these issues or to identify workers
as bullies for fear of drawing attention of regulators to their business.
That is why the Coalition Members support many of
recommendations in the report including calling for the adoption of a national
definition, for the establishment of a national advisory service and support
for employers to identify and deal with bullying in the workplace.
The Coalition Members believe there is merit in having a
national code which can provide guidance for employers and employees about what
However the Coalition Members have serious reservations
about the current draft code, as it exemplifies many of the concerns
articulated above. For example, the current draft code lists “not providing
enough work” as a form of “indirect bullying” along with setting timelines that
are difficult to achieve. The draft code also prohibits “eye rolling
responses” that might “diminish a person’s dignity”. The Coalition Members
could not support a Code with clauses which are so subjective or plainly
ridiculous. Further, as substantial changes to the Code were likely, the
Coalition Members were of the view that it would be unwise for any Committee
Member to fully endorse the current draft.
The Coalition Members have also supported the Government
Members of the Committee in calling for the government to consider the
development of a number of services that would assist both employers and
workers to address the issues surrounding bullying in the workplace.
All of these recommendations should be part of informing
employers and workers alike about the benefits of eliminating bullying and
providing tools, advice and assistance to achieve this goal. It should also
demonstrate the financial and personal costs of ignoring the issue.
The Coalition Members are particularly opposed to
recommendations five and twenty three and have reservations on some other
As outlined above, the Coalition Members believe there is
merit in having a national code to provide best-practice guidance, but have
serious reservations about the existing draft Code.
Recommendation five advises the Government to introduce
Commonwealth regulations which would force employers to meet the conditions of
a code of conduct which is still under negotiation and yet to be adopted by
Australia wide adoption of the national work health and
safety laws is steadily progressing. States that have signed on to that
harmonised legislation are working towards reaching agreement on a national
code of conduct. The Coalition Members believe these changes should be given
time to take effect before further regulatory action is considered.
Under regulations, employers would be given the ultimate
responsibility of guaranteeing compliance with legislation driven by defined
compulsory actions. The Coalition Members consider that it is likely this
course of action rather than being a catalyst for reform, may instead lead to
this group to identify government agencies as the source of their problems
rather than a tool to address these issues. Smaller employers in particular are
already struggling to adapt to the rafts of compliance handed down by all
levels of government.
To achieve a real change in workplace culture the importance
of support from the organisations that represent the bulk of employers in
Australia is difficult to overstate. Many of these groups expressed strong
concerns at the possibility of enforceable regulations.
Mr Paul Moss for the Chamber of Commerce and industry WA
said during the Perth hearing. “The more legislation you have, the more complex
the issue is” and “So the more you have, (legislation) the more confusion and
the more complexity you have. Employers in running a business have an awful lot
of things they need to be aware of and comply with. The more we add in here,
the greater the chance of non-compliance will be. So keep it simple”.
The Coalition Members are concerned that an inflexible
enforcement mechanism could lead to a hardening of attitude between conflicting
parties and particularly so between the employers and workers. If that is the
case it is likely all parties will be disadvantaged and the co-operation needed
to change workplace attitudes will be harder to achieve.
In the Coalition Members opinion, legislated regulation will
not help in this area however it is more likely to provide a platform for
recompense after a worker has left the place of employment. The sub-title of
this report “We just want it to stop”, succinctly captures the desires of
victims and clearly recommendations should aim for change at work, not after
The Coalition Members are not opposed to the Commonwealth
Government working with industry and employer groups to promote the economic
benefits of positive working environments that are free from workplace
bullying. However, they question the impact of this recommendation versus implementing
a more general awareness campaign about workplace bullying. Further,
recommendation 10 suggests to work through the “Centre for Workplace
Leadership” as well as employer groups. This Centre is not yet established and
Coalition Members are sceptical it will add any real value, but will cost at
least $12m over four years.
The Coalition Members would also like to draw attention to
recommendation eleven which calls for the establishment of a national service
to provide advice, assistance and resolution services to employers and workers.
The recommendation while calling for the government to
establish this service does not specify whether this service should be run by
and within government or whether it could be provided by industry.
The Coalition Members are very wary about any moves to
establish expensive new government bureaucracies and consider this potentially
valuable service would be best placed outside government.
Should such a service be located within the office of the
regulator, that, in itself, would be a problem to an employer identifying their
workplace as having issues with workplace bullying. However it is likely that
should such a service be located within government anywhere, such attitudes may
Coalition Members believe that independent mediation
undertaken voluntarily can be an effective mechanism to resolve difficult
workplace issues. Many private mediators are already in existence and utilised
by employers and employees. Coalition Members questioned the efficacy of a
government mediation service particularly when such a mediation service in
Victoria was withdrawn because it was not utilised.
The Coalition Members support young Australians
understanding their rights and responsibilities during work experience
programs. Fair Work Australia already provides such information and would be
best placed to enhance its efforts if required. Duplicating its work through
other arms of government is not supported.
The final recommendation of the report, calls for the
individuals to be given a right of recourse if they claim to be the victims of
The Coalition members accept there were numerous calls from
individuals in particular for this course of action, but fear that outcomes are
far less likely to be satisfactory in practice than in theory.
The Coalition Members are concerned that while the calls
from these parties were for justice, it is far from certain that recourse to
retributive action would achieve that. The Coalition Members are unconvinced
that the enquiry sufficiently examined what the possible down-sides might be of
extended and difficult litigation for all individuals concerned.
Scope currently exists in all jurisdictions for the workplace
regulators to take action on behalf of injured parties and we can assume if
they choose to pursue such action they will have assessed a reasonable chance
of winning the case and have the resources to execute that course of action.
Further, the Coalition Members are concerned that enabling
individuals to take such action will open a door to potential abuse of the
device. Frivolous actions, or even worse, actions driven by malicious intent
would have the ability to tie employers up in rolling court actions for
While the Committee took no direct evidence on this
possibility the Coalition Members are concerned that in the past seemingly
un-associated actions have been part of industrial campaigns against employers
and thus are sufficiently wary to decline endorsement of this recommendation.
The Coalition Members would like to make the point that
while a body of evidence was received identifying bullying in a wide number of
workplaces, the inquiry was far more likely to attract examples of poor
practice, rather than good and in that case examples of good and excellent
workplace environments were unlikely to be highlighted.
They believe as awareness increases in the community of the
personally damaging effects of workplace bullying then change for the better is
inevitable and hope that this report will go some way to mapping that change.
|Rowan Ramsey MP