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Workers compo laws need tweak

Date

The Canberra Times

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It may yet be a tad early to definitively ''name'' 2012. Some will say it was the year Australia priced carbon emissions; a few will remember it as the year the world was supposed to end but didn't. For many Australian employers, however, one issue shaped 2012 more than any other: workplace harassment. The year began with a landmark Federal Court case that upended notions of who was responsible for some staff's psychological injuries. Last month, a federal parliamentary inquiry reported on workplace bullying. And as the year draws to an end, another inquiry, into the federal Safety, Rehabilitation and Compensation Act, nears completion.

It's impossible to know whether bullying is becoming more common among Australian employees. Workplace-health regulator and insurer Comcare told Parliament this year that federal public servants lodged 30 per cent more compensation claims for mental harm in 2010-11 than three years earlier. This may simply mean that more staff are willing to report alleged harassment when, in the past, it remained a private matter. Nonetheless, Comcare says the ''increasing incidence of mental harm and bullying claims is of great concern''. In the Australian Public Service alone, the annual costs of those claims rose by 60 per cent over the three years, reaching $46.3 million.

We shouldn't assume, however, that bullying is a public sector problem: it can befoul any workplace. Government agencies are comparatively transparent about their workforce problems, which is in part why they attract more media coverage than businesses. Comcare notes that last financial year only a tiny proportion of public servants (1.6 in every 1000) submitted a claim for serious mental harm.

Indeed, the court case that precipitated much of this year's focus on bullying involved a private sector workplace. Mark Reeve managed a Commonwealth Bank branch in Perth. He tried to kill himself rather than face what he thought would be a humiliating meeting to discuss his branch's performance. The full bench of the Federal Court awarded him compensation, saying the bank failed to recognise his stress and intervene. The precedent this case set was that employers were legally responsible not only for preventing workplace harassment, but for ensuring that employees didn't perceive they were harassed (regardless of whether an alleged bully even existed).

For many employers, this has unbalanced the scales of justice: why should they be accountable for a worker's mental health if they caused the worker no direct harm? One government department told the present inquiry into compensation laws that ''the acceptance of claims based on perception of harm … disproportionately favours the [employer's] acceptance of liability'' for causing the injury. Comcare, too, wants harm caused by ''an employee's perception'', as opposed to established legal fact, excluded from its workers' compensation scheme.

Yet unions argue it is an employer's duty to monitor staff's health closely and to offer help at the first sign of need; it is simply part of ensuring that the workplace is safe. The recent parliamentary inquiry into bullying also heard disturbing allegations that some public service managers retaliated against staff who reported bullying by forcing them to undergo a ''fitness for duty test''; a way of implying that they were too mentally ill to keep their jobs.

Bullying is clearly a highly complex conundrum. Its causes are myriad, as are its consequences. Behaviour that some people laugh off, or challenge confidently, cripples others. Indeed, the Public Service Commission reported last month that up to half of the perceived bullying in the bureaucracy came down to personality clashes. And while there are intentionally cruel bullies in some workplaces, there are opportunistic victims, too, whose main concern is enrichment or revenge, rather than returning to their job.

For these reasons, many of Comcare's ideas for improving compensation law appear sensible. It wants to emphasise the primacy of rehabilitation; to this end, it recommends forcing parties to attempt mediation before going to a court or tribunal. The agency also suggests giving its staff access to search warrants to better investigate fraudulent compensation claims. It wants employers who fail to try to rehabilitate injured workers to be fined, and staff who defraud compensation schemes to face charges.

Ultimately, every reported incident of workplace harassment must be investigated thoroughly and objectively, because every case is different. It is hard to argue against giving a regulator powers that will help it uncover the truth. Still, the best solution for workplaces is to avoid these conflicts entirely, by ensuring all staff know the importance of respectful, considerate communication.

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