The Federal Workplace Bullying Inquiry has been told Australian workers are getting soft and will litigate by the truckloads if new workplace bullying laws are introduced.
'In every decade, there is a buzz word for some activity or malady within the workplace. In the 1980s, it was repetitive stress injury. Today RSI is barely heard of. Is workplace bullying therefore merely a passing fad?' So wrote Gerard Phillips, a partner at law firm Middletons, in the Australian Financial Review on 22 August.
While Phillips thinks the workplace bullying debate is an attack on 'managerial prerogative and control', I've met at least a dozen people who say they have lost their jobs and former lives as a result of being bullied at work.
One woman, aged in her 60s, had much of her small coastal town, including the local doctor, turn on her when she made a bullying claim against her employer. She shows me a psychiatric assessment which concluded that her workplace bullying had caused her nightmares, memory loss, paranoia and chronic anxiety, and that despite having had no psychological conditions prior to the bullying, she would not be well enough to work ever again.
She thinks about suicide all the time — 'I even thought about it on the way to this interview.' She becomes so distressed during our meeting that she begins a wheezing: she has developed asthma since the bullying started.
In 2011, Victoria became the first state to criminalise bullying following the death of café worker Brodie Panlock. Now Federal Workplace Minister Bill Shorten has given every indication that national workplace bullying laws will follow once the Government's workplace bullying inquiry concludes in November.
Many workplaces and employer groups say more regulation will lead to more complaints, more litigation, more costs, lower productivity and a culture where a worker cannot be legitimately disciplined without crying 'bully'. However, the evidence is that effective regulation will actually reduce levels of workplace bullying.
Just look at France. It has the most comprehensive workplace bullying laws in the world, and its workplace bullying levels are among the lowest reported in the OECD.
The development of French workplace bullying law stems from psychoanalyst Marie-France Hirigoyen's 1998 book Moral Harassment: The Perverse Violence of Everyday Life, where she defined moral harassment as 'psychological violence that produces effects for the health until it creates an authentic work-related illness'.
The French began an intense public discussion about acceptable workplace behaviour, and eventually a new article was introduced into the French Labor Code that protected employees from 'repeated actions ... constituting moral harassment' that 'deteriorate their working conditions' and are 'likely to violate their rights and dignity, impair their physical or mental health, or jeopardise their professional future'.
Note, too, Queensland, which has a highly regulated psychological-injury prevention program. The state even employs psycho-social safety inspectors to assess work areas and advise management on how to make the environment more psychologically conducive.
The number of psychological injury claims declined sharply after the increase in government regulation, risk analysis and workplace education. Queensland also has the lowest rate of psychological workplace injury compensation claims in the nation.
The devil is in the regulatory detail. What sort of regulation do we need? How will we know it is working? What are the risks? What do we regard as 'bullying' and what do we regard as mere workplace 'cut and thrust'?
These are complicated questions involving complex human interactions. As Dr Sara Branch, research fellow at the Key Centre for Ethics, Law, Justice and Governance at Griffith University, told the parliamentary committee:
The term 'bullying' has the potential to be used as a weapon against others in the workplace ... so there is a risk for the grievance system to be misused and used as a tactic to bully others in the workplace, with the performance review system also potentially used in the same way. And yes unfortunately it has got to the point where the term bullying has almost become the signifier of all the ills within our workplace.
There may be a fine line between robust performance management and workplace bullying, but international surveys have repeatedly shown Australian managers fail international benchmarks when it comes to the treatment of their people. Bullying might be subjective, but research consistently shows around a quarter of Australian workers say they have been bullied in their current job — more than twice the level in France.
On the other hand, if workers were happier with the way workplaces were handling the bullying issue, this debate would never have arisen. 'Treat us well and we will do good work for you' — it's a simple proposition which many employers still fail to understand.
Luke Williams is a freelance journalist who is studying law at Monash University in Melbourne.