National law firm principal, Josh Bornstein, says criminalising workplace bullying will not work, and Fair Work Australia should be given a new early intervention role to prevent cases reaching the point of irreversible damage.
In a presentation at a Legalwise seminar in Melbourne last week, Mr. Bornstein addressed “myths” perpetrated about workplace bullying, including that it was a safety issue.
“One of the keys to sensible legislative and policy reform on workplace bullying is to remove it from its current legal and cultural designation as an occupational health and safety issue,” Mr. Bornstein told his audience.
One reason for this view was that workplace bullying was illegitimate regardless of “whether an injury is caused or threatened“. He compared it to unlawful discrimination, noting that both could cause catastrophic damage to health, “but it is only bullying that remains pigeon-holed in the OHS and personal injury sub-culture“.
The second reason was entrusting enforcement to state-based OHS regulators, “hasn’t worked and it won’t work“. Such agencies are overwhelmed by the volume of bullying complaints, and have quickly become jaded by the issue, developing a “compassion fatigue“.
It is a time for changes to the Fair Work Act 2009 (Cth) to enable victims of workplace bullying to take a complaint to a tribunal or a court, “well before the situation has escalated to the point of irreversible damage [to their health]”… “Either Fair Work Australia, the Federal Court or Federal Magistrates Court could have a role.”
Potentially, the Fair Work Ombudsman could initiate proceedings, as well as the employees themselves.
On the proposal to expand the criminalisation of workplace bullying and other calls to extend Victoria’s Brodie’s law, Mr. Bornstein said he “couldn’t disagree more.” Brodie’s law is an amendment to the Victorian Crimes Act 1958 introduced last year to target serious bullying behaviour, following the suicide of 19-year-old Melbourne waitress, Brodie Panlock. Mr. Bornstein said that while the law was symbolically important, “at a practical level it has been next to useless. It does not apply to 95% of bullying situations.“
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