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Wednesday February 21st 2018



The state of workplace bullying in Australia

Australian women Lill Cunningham and Dianne Wilkinson know from personal experience the devastation that can occur at the hands of a bad boss and in a hostile workplace. In addition, both took a grassroots approach to help ensure that what happened to them would be ruled illegal in Australia and wouldn’t be happening to others. However, as they’ve found out, it gets deeper and trickier even though some laws currently exist.

eBossWatch had the opportunity to chat with Lill and Dianne recently about the current state of affairs in Australia and what the future may hold for those who find themselves in the midst of workplace bullying in Australia (and also in the US).

Australia has some laws in place that are supposed to protect workers from bullying. What’s the history behind these laws and how effective are they in curtailing workplace bullying in Australia (pros & cons)?

Lill: In Australia, anti-discrimination/equal opportunity laws exist to protect employees from harassment in the workplace. It is against the law to harass a person in relation to their: sex, pregnancy, race, religious belief, marital status, disability, or age. These laws are similar to the current EEOC laws in the US. There is currently no law to directly address harassment in the workplace, if the employee does not fall under a protected class.  Like in the US, Unfair/Constructive Dismissal may be claimed in cases where ongoing harassment has occurred and the employee was forced to abandon their position.

If psychiatric injury results as a consequence of harassment (supported by professional medical opinion), an employee has the right to pursue a claim for Workers Compensation. In the event that the injury is serious and it may be proven the employer was negligent in their duty to provide the employee a safe workplace, it may be possible to take legal action via legislation under the Occupational Health and Safety Act (2004).

Dianne: The Australian Federal “Fair Work Australia Bill” was passed on March 20, 2009.  In January 2010 the Fair Work Australia Bill came into being, replacing the “WorkChoices” Industrial Relations Laws. The Fair Work Australia Bill does not make any allowances for “Workplace Abuse.”

WorkSafe Victoria has provision for information on workplace bullying, but there are no specifications for prosecution or accountability/culpability.  Even the “occupational violence” clause has nothing to do with workplace abuse – psychological, emotional, or physical of workers.

The Victorian Crimes Act 1958, Section 21A- Subsection 3 and Section 22, covers the deliberate intention to cause injury, but these laws are never invoked. Individual States have their own Industrial Relations laws, but none to specifically protect workers from abuse. General whistleblower laws in Australia are designed to protect people who report illegal actions taken by state organizations, public sector employees, etc. in South Australia, whistleblower protection extends to the private sector, and the Corporations Act contains a section extending whistleblower protection to employees of corporations, though not to private businesses or charities. However, this protection does not save the person from the ravages of the system.

As for pros and cons, I do not see any positive developments in worker protection from abuse in this country and there are no laws that EFFECTIVELY deal with the situation.

The authority that deems to protect injured workers, WorkSafe, has significantly raised the bar in relation to qualifying for compensation and even the most basic financial assistance to cover urgent costs of psychiatric, emotional, medical, and pharmaceutical needs.
I believe that the Australia Governments, both State and Federal, are distinctly unwilling to acknowledge the problem of workplace abuse. Experts such as Prof. Patrick McGorry, (former Victorian of the Year) are unable to attract government attention to our burgeoning mental health needs. With suicides related to workplace bullying frequently occurring in Australia and workplace injury costing the national economy between $6b and $13b annually, plus incalculable human costs, Australia has a serious problem that appears to be deliberately ignored.
I use my own experience with politicians as testimony of their disinterest.

Any advice for those of us in the US working towards the establishment of a workplace bullying law?

Lill: I see many campaigners in the US excited by the prospect of a new law to assist in    eradicating abusive workplaces.  In my state of Australia, although we have a law that many workers believe can be accessed should the need arise, the reality is quite different.                             
While “employer was negligent in their duty to provide the employee a safe workplace” seems quite straightforward, there are numerous clauses that have been added to this, obviously designed to exclude most claims, regardless of the employers’ negligence. Of course fraudulent claims must be eliminated, but the bar is set so high that it seems the majority of claims could easily fall into the fraudulent category. As it presently stands, employers are protected from legal action in the majority of cases, leaving many injured employees out in the cold. So, I would advise you all to be aware of the underlying clauses that accompany any proposed legislation in the US.

Dianne: Personally, I do not think that any law reform can be effective unless it addresses the obligations of “accountability and culpability” of:

• individual perpetrators
• “bystanders” who facilitated the abuse by their conscious inaction
• companies/organizations/businesses and their officers for failing to take effective action to ensure that workplace abuse does not exist or against perpetrators and instigators of the abuses.

I believe it is essential that the misconduct of cruel workplace psychological, emotional, physical, and sexual abuse be recognized by the law as a criminal offence where:

an offender has the intention to cause physical or mental harm to the victim or to arouse apprehension or fear in the victim for his or her own safety or that of any other person if:

(a) the offender knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or
(b) the offender in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.

The resulting damage to the victim — psychological, emotional, punitive, and financial — must also be of major factor for consideration.
What inspired you to get involved in the anti-workplace bullying movement, start a Facebook Page, etc.?

Lill: I wouldn’t say I was exactly inspired, but my own experiences in a toxic workplace led me here.  Workplace harassment is a scourge that is exploiting the basic human rights of workers worldwide. If there is to be any hope of reducing this harmful behavior, legislation needs to be designed fairly and not weighted heavily in favor of employers, as it currently is in Australia.      So, I add my voice to those who are seeking law reform and hope to validate the experiences of those who are trying to survive the effects or after effects of toxic workplaces.        

Dianne: I embarked on my passionate campaign seeking justice for myself and two young people, each of us subjected to deliberately contrived systematic campaigns of inhuman emotional and psychological  “war games” — physical and sexual misconduct that left each of us so damaged and broken and I am now the only survivor.

I had no idea that the “black plague” of cruel workplace — psychological, emotional, sexual and physical abuse — even existed outside my own workplace of 25 years.  It was a very dark secret that I lived with because I simply had to keep my job.  It is an insidious cancer that is killing you but you don’t even know it’s happening until it is too late because the agony becomes part of one’s very existence for so long.  You think it’s normal.

For over a decade, I have campaigned politicians including Prime Ministers. Utterly futile. Then I discovered that workplace abuse is a global catastrophe and “bullycide” has reached pandemic proportions.  I no longer fight alone.