Hi Renata – How can I help a DWG member with bullying in the workplace when our employer says that the Human Resources department is already handling it under a grievance procedure?
Bullying is a psychosocial hazard and a legitimate OHS risk. Your employer cannot use the HR grievance process to shut down the OHS process. They are separate obligations, and even if HR is "handling it," the employer still has a duty under s.21 of the OHS Act provide a safe workplace and under r.15 of the OHS (Psych) Regulations to eliminate or reduce that risk using the prescribed hierarchy of controls under the psychosocial regulations.
The HSR role and Human Resources (HR) grievance processes are separate but can run in parallel. Whilst the HSR process focuses on eliminating or reducing the risk to health and safety by ensuring safe systems of work are in place and by analysing the workplace factors contributing to bullying, the HR grievance process is typically focused on resolving the individual complaint and managing potential disciplinary outcomes.
HR may focus on whether one person bullied another, but the HSR looks at the bigger picture, and should be asking what workplace conditions are allowing or contributing to this behaviour? Are there systemic issues like high workloads, poor management, lack of training, or poor organisational change management driving the problem?
HSRs are advised to carefully consider whether it is in the best interests of a worker to involve HR as the first step in addressing reports of bullying. Encourage the worker to speak with a trusted co-worker, you, or their union first. HR works for the employer — the HSR and the union exist to represent workers.
Be wary of employers who say "this is an HR matter, not an OHS matter" - bullying is explicitly a psychosocial hazard under OHS law. Employers should not be trying to limit your investigation because “HR is already involved” — your powers under s.58 are independent of HR processes.
In fact, under r.16 of the Psychological Health Regulations, the Employer must review and, if necessary, revise any measures implemented to control risks associated with any psychosocial hazards. This includes when an employee, or a person on behalf of an employee, reports a psychological injury or a psychosocial hazard to the employer after receiving a request from a health and safety representative.
If your employer attempts to close the matter through an HR process without addressing the underlying workplace hazards, your ongoing role as HSR and the powers you have under the OHS Act become critical to achieving systemic change to prevent future bullying.
As an HSR, you have specific powers to act on behalf of your DWG members in the following ways:
Investigate - under s.58(1)(b) of the OHS Act, you can investigate complaints received from DWG members. Document reported incidents using a bullying incident log — you can download one here. Advise DWG members to keep a diary of incidents with dates, times, witnesses and any other relevant information.
Consult – under s.35 of the OHS Act, the employer must consult with you on the identification, assessment and control of any risks — including psychosocial hazards like bullying. Push for a proper risk assessment of the workplace factors contributing to bullying, such as organisational change, workforce characteristics, poor workplace relationships, or work systems and high job demands. You can request consultation using our Consultation Email template and record the details of consultation using our Record of Consultation form.
Act – as an HSR you have powers to escalate matters if your employer fails to address and resolve an identified hazard within a reasonable time. You can:
· Issue a Provisional Improvement Notice (PIN) under s.60 of the OHS Act if your employer is not adequately addressing the hazard
· Use the issue resolution procedure under s.73 of the OHS Act and the Psychological Health Regulations if there's a dispute
· Call WorkSafe to request a WorkSafe inspector attend the workplace
· To proactively prevent bullying, you can work with your employer to develop an anti-bullying policy that includes:
- A clear definition of bullying
- A statement that it is not tolerated
- Reporting and investigation procedures
- Regular monitoring and review
- Adequate training, information and instruction for all workers and supervisors
· Conduct surveys to identify whether bullying is a broader problem — including workplace factors contributing to it. Try our Psych Health Survey Tool.
Keep in mind that bullying is rarely just an individual problem. Consider whether other workers are experiencing similar issues. Is there a pattern of behaviour or a toxic workplace culture? Would collective action through your union better address the root causes? Could the OHS committee (or requesting one be established) be a vehicle for systemic change?
Collectively pushing for systemic cultural change is one of the most powerful things you can do to support your DWG members in a bullying situation.
You can find more information and resources to help you address bullying at:
- · OHS Reps: Bullying Action Plan for HSRs
- · OHS Reps: What Are Psychosocial Hazards?
- · OHS Reps: Prevention Plan for Psychosocial Hazards
- · WorkSafe: Compliance Code: Psychological Health
- · WorkSafe: Preventing Workplace Bullying
- · WorkSafe: Psychosocial Risk Assessment Tools
And, of course, remember that we provide some of the best union-based training available at our Victorian Labour College. All refresher course participants will receive one of VTHC’s Annotated OHS Act - Psych Health Edition. Alternatively, you can purchase your own copy here.
If you have any questions about OHS we encourage to fill out an Ask Renata query and one of our officials will get back to you shortly. Alternatively give Ask Renatabot a try!