Australian law firm Minter Ellison has produced a useful article (not yet available on their website) on a recent workplace bullying prosecution. However the document displays a perspective that is becoming increasingly common in Australia labour law practices.
The type of abuse suffered by the apprentice is something that has not been prosecuted for many years. In fact, many occupational health and safety (OHS) professionals had thought such bullying actions stayed in the previous century. Minter Ellison seems to have forgotten that workplace bullying came to prominence through union lobbying of the problem as an OHS issue over twenty years ago for it says:
“While we are seeing more successful applications in the ‘anti-bullying’ jurisdiction of the Fair Work Commission, it is unusual for an organisation (or workers within an organisation) to be prosecuted under WHS laws for bullying. This conviction is only one of a handful of criminal convictions in Australia under WHS laws for bullying at the workplace.”
This is technically correct if one ignores that OHS laws have existed for decades prior to the Work Health and Safety (WHS) laws. It is definitely NOT unusual for an organisation to be prosecuted under workplace safety laws, only, perhaps, under WHS laws.
The mention of the workplace bullying role of the Fair Work Commission is irrelevant as the FWC seems to have played no role in the prosecution of Quality Carpentry and Building Maintenance and its director, Wayne Allan Dennert. However many employment relations law firms, or the OHS sections of the firms, have always felt more comfortable in the industrial relations tribunals than in the Magistrates’ and higher courts arguing on OHS principles and the prevention of harm.
This comfort is illustrated by part of Minter Ellison’s advice.. It recommends:
“Put in place measures to control the hazard – consider the appropriate control measures that could be put in place to minimise the risk – eg, train staff that bullying is unacceptable, introduce and communicate a bullying policy, provide a mechanism for staff to raise concerns about bullying, have a process for investigating bullying complaints;”
Introducing and communicating a bullying policy is good but ineffective if enforcement is not applied.
Minter Ellison also state:
“The best way to minimise any potential exposure under WHS laws is to treat and manage bullying like any other WHS risk in your organisation by applying the methodology required to assess and manage WHS risks.’
The OHS/WHS methodology they allude to, the Hierarchy of Control, has as its first principle the elimination of the risk or hazard. It is important to “assess and manage WHS risks” but this is supposed to be done with the aim of removing and reducing the likelihood of a similar incident recurring.
The quote also illustrates the too common primary concern of law firms when addressing OHS issues:
“the best way to minimise any potential exposure….“.
Not “the best way to prevent employees being permanently psychologically damaged”. WorkSafe Victoria’s media release on the prosecution includes the following details from the apprentice who was bullied:
“In a victim impact statement read to the court, the apprentice said that he continues to suffer from anxiety, depression, nightmares and insomnia caused by the bullying. But it was the emotional trauma that was the hardest to bear.
“I would rather be burnt, bruised, assaulted, drenched in glue, water, paint, weeks’ old coffee and spat on all over again than to relive a week of the psychological torment I endured,” he told the court.”
This was from a person who started their apprenticeship at 16 years old with this company. Many young workers take on apprenticeships to learn a lifelong trade yet who knows what this young person will do now.
There is another context to the workplace bullying of apprentices. Only this week, as part of the Australian election campaign, the Australian Labor Party made this pledge mirroring one from the Victorian ALP Party from 2014:
“A Shorten Labor Government will boost apprenticeships across the country, giving more Australians the opportunity to gain real skills and a good job. Labor will do this by ensuring a proportion of the jobs on major federally funded-projects are delivered as apprenticeships.”
There is nothing in this pledge that commits the potential Labor Government to ensuring these jobs are safe or to making sure that young workers will not be bullied and abused (an issue SafetyAtWorkBlog has been advocating for many years). The ALP policy statement on OHS provided to the Safety Institute of Australia this week made no mention of apprentices.
Perhaps the most obvious indication that Minter Ellison has not thought sufficiently about the OHS elements of this prosecution is that it persists in referring to WHS laws when the prosecution has clearly occurred through the Occupational Health and Safety Act 2004, as stated by WorkSafe Victoria. Although the OHS and WHS duties are ostensibly the same, such an error reduces the authority of the advice.
Filed under: bullying, evidence, government, hazards, hierarchy of controls, law, lawyers, occupational, OHS, psychosocial, safety, Shorten, small business, WorkSafe Image may be NSFW.
Clik here to view.
Image may be NSFW.Clik here to view.
