Why The New Anti-Bullying Legislation Isn't Working

On January 1 this year in Australia, new anti-bullying legislation was introduced whereby workers can now apply to the Fair Work Commission (FWC) for an order to stop the bullying.  Once an application has been received, the FWC has 14 days in which to respond with an investigation of the complaint.  Legislators expected an overwhelming demand given that bullying affects over thirty percent (three million plus) of Australian workers and costs the economy between six and 36 billion dollars per annum.

It seemed reasonable to expect that applications should have numbered in the thousands by now when results from a parliamentary inquiry in 2012-13 showed that workers’ most desired outcome was that they just wanted the bullying to stop.

However, only 44 applications have been received this year so far, six of which were withdrawn.  This has surprised commentators who have been speculating about possible causes, especially when in contrast, 1,000 unfair dismissal complaints were made within the same time period.

Predictions have been that the low numbers may simply reflect seasonal variations or the uncertainty caused by the newness of the legislation.  However, the actual reasons for the low number of applications may be a lot more sinister.

Bullying is often experienced as a relentless campaign of terror that, on average, has lasted at least two years, in the face of which victims are left feeling helpless, frozen and too frightened to act in their own defence.

Fear of reprisals from the boss, possible unfair dismissal, loss of economic stability, leaving the workplace without good referrals and the difficulty of finding a new job are very real concerns that stop victims from lodging complaints.

Victims often become mired in beliefs that they are worthless, incompetent and useless when bullying causes them to despair on a daily basis.

In my private practice, I see many clients who have been bullied in the workplace, sometimes for as long as six years!  It can take clients two years or more to pluck up the courage to act in their own defence and either make a complaint or look for another job.

This is especially so in workplaces where bullying is rife, policies and procedures afford no real protection and management functions within a culture of denial, such as state government departments unregulated under the new legislation.

In those workplaces, the Australian Fair Work Act 2009 ostensibly covers workers but to date, WorkSafe (the agency responsible for enforcing the act) has never prosecuted a state government department for bullying, so workers probably don’t feel safe in coming forward about bullying.

Most targets of bullies are ethical, decent and competent employees who may be shy and conflict-averse, lacking in confidence to assert their right to safety, especially when feeling depressed and anxious.

Bullied workers can take the following three steps when too frightened to make a formal complaint:

1. See a doctor for a referral (rebated by Medicare in Australia) to see an independent psychologist, competent in supporting recovery from bullying and willing to take an advocacy role
2. Keep a journal of bullying incidents and other important evidence to support a possible case
3. Keep informed by reading the latest books, blog articles and social media posts on bullying