澳大利亚劳动法：在劳动场所反对欺凌的法律框架

Effectiveness of the Australian legal framework in dealing with workplace bullying
1.Introduction
Employees should be treated equally and fairly before labor law. However the fact does not always like that. Workplace bullying has happened very frequently from the Industrial Revolution. Workplace bullying in any forms is prohibited by law. The employer and employee should take steps to prevent workplace bullying from occurring. This essay introduces the legal framework in Australia dealing with workplace bullying and through argument demonstrates that the legal framework is ineffective to prevent workplace bullying.
2.Body
2.1Legal framework dealing with workplace bullying in Australia
Australia is a federation united with states. There are two sets of law systems in the country. Federal legislations are promulgated by the Australian Parliament or the Australian Government, while legislations at the level of states are promulgated by states parliaments or states governments. The boundary of authority between the federation and the states is specified in the Australian Constitution. Also there are two sets of legal framework dealing with workplace bullying at the level of the federation and the states respectively.
As for workplace bullying, there is no such special law dealing with it both at the level of the federation and the states; actually only several provisions relevant to workplace bullying can be found in Australian legislations. What‟s worse, the term “workplace bullying” has no explicit and specific meaning in Australian labor law: no definition for “workplace bullying”is found in the law. The Law Society of NSW defined the term as “a unreasonable and inappropriate workplace behavior includes bullying, which comprises behavior which intimidates, offends, degrades, insults or humiliates an employee possibly in front of co-workers, clients or customers and which includes physical or psychological behavior."1Workplace bullying may be conducted physically or mentally, directly or indirectly, actively or negatively. It includes but not limited to the following types of conducts: dirty or unacceptable words, language or face; coercive behavior; unacceptable joke or teasing; intimidating or assaulting behavior or threats; abusing authority; ignoring someone and so on. Concluded from the definition “workplace bullying”is just a bullying occurred at workplace, it is same as other kinds of bullying without other particular characteristics. The dignity and body of citizens is protected by the federation constitution but the protection is at a general sense.
At present, employees are mainly protected by the occupational health and safety laws2. The law has provided primary duty of care for occupational health and safety, further duties of persons at respects of managing or controlling workplaces, managing 1Please refer to the website: .au/articles/214/employment-law---workplace-bullying.aspx. 2Division 2 and Division 3, Part 2 “ Health and Safety duties” of the Work Health and Safety Act 2011 No 10 (New South Wales).
or controlling fixtures, fittings or plant within a workplace, designing, importing, supplying plant, substances or structures, installing, constructing or commissioning plant or structures and so on. Some of these duties are relevant to “workplace bullying” but others are not. It is not a special law for regulating workplace bullying. Also there several sections regarding workplace bullying in the Fair Work Act 2009 (Cth)3. Division 3, Part 3-1 of the Act provides several workplace rights. The Fair Work Act 2009 (Cth) specifies the meaning of and protection of workplace right at first, then lists three kinds of workplace rights (section 343-345): coercion, undue influence and misrepresentation. All the three sections are civil remedy provisions; therefore employees who suffered workplace bullying may seek civil remedies in accordance with the three sections. The three workplace rights conferred by the three sections consists main contents of the legal framework preventing workplace bullying. The Fair Work Act 2009 also provides prohibition of discrimination and civil remedies for discrimination. There are a set of anti-discrimination laws in Australia which deters various categories of discriminations against employees, such as discriminating employees for his gender, age, political opinion, education, race and ethic and so on, which help to prevent workplace bully. Discrimination refers to someone is treated less favorably due to his particular characteristic which has no connection with his ability to work. It is actually a kind of workplace bullying.
The most powerful protection of employees provided by Australian law against workplace bullying is from criminal law. In Victoria, a Crime Amendment (Bullying) Bill 2011 had been introduced into the State Parliament, which provides a jail term of up to 10 years for workplace bullying (Catanzariti 2011)4. The amendment greatly enhances the protection of employees under the Occupational Health and Safety Act 2004 (Vic) through imposing criminal penalty to someone who conducts workplace bullying. The criminal law also provides prohibition and criminal penalties for the conducts of insulting, humiliating or shaming the employee. Some people think that it is adequate for preventing workplace bullying because criminal penalty is the most severe penalty. However, the Occupational Health and Safety law is not adequate to protect employee from workplace bullying because many kinds of workplace bullying are not covered by the law; as well as the criminal law is too severe, it only covers the extreme part of workplace bullying, most cases of workplace bullying are not criminal matters, which leaves a large blank for protection of employees (Bornstein 2012)5. In fact people are harder to seek legal remedies when bullied at workplace.
As analyzed above, the legal framework dealing with workplace bullying is insufficient (there is no such special law dealing with workplace bullying) and ineffective (both the Occupational Health and Safety law and the criminal law are operated neither jointly nor connectively to prohibit workplace bullying).
3Please refer to Division 3 “Workplace Rights”, Part 3-1 of the Fair Work Act 2009(Cth).
4Rick Catanzariti 2011, ‘Criminalisation of work place bullying’ :
/australia/publications/detail.aspx?pub=5925
5Miriam Bell 2011 ‘Brodie’s Law ineffective in dealing with workplace bullying’:
/article/brodies-law-ineffective-in-dealing-with-workplace-bullying-143641.aspx
2.2Bodies in charge
Still, there is no such special authority or body to implement the legal framework dealing with workplace bullying. Courts and tribunals may impose penalties on someone who bullied other at workplace; Three bodies were founded in accordance with the Fair Work Act and the Occupational Health and Safety law. Fair Work Australia helps people to solve disputes arose in the employment between the employer and the employee. Employers, employees, trade unions and employer associations may seek resolution of disputes from the Fair Work Australia. Disputes arising under the protection of workplace rights and workplace discrimination can be referred to Fair Work Australia. Office of the Fair Work Ombudsman was commenced from 1st July, 2009; it is responsible for investigation of grievances or suspected violations of workplace laws, enforcement of workplace law, initiating litigations to enforce workplace laws and adjudicates on matters regards anti-discrimination. Safe Work Australia was founded in 2009 which aimed at improving health and safety at workplace and arrangements for worker s‟ compensation in Australia. To some extent the organization is responsible for reducing bullying in workplace, but reducing bullying in workplace is not a main and direct task of the organization. Lack of special individuals and organizations for implementation of the legal framework causes ineffective execution of that legal framework.
There are other organizations, authorities or bodies which had been founded such as The NSW Industrial Relations Commission, The Equal Opportunity Division of the Administrative Decisions Tribunal in New South Wales and so on. This essay does not include analysis of these bodies due to that they have little connection with enforcement of workplace rights and deterrence of workplace bullying.
2.3Effective of the legal framework
It seems that there are lots of law provisions and bodies to deal with the workplace bullying thus the legal framework are effective. There are lots of law provisions and bodies. It seems that the legal framework is effective. However it is concluded a adverse answer to the argument for the following reasons: (1) no definition for “workplace bullying”is found in the legal framework; (2) no special law or law provision exists solely deals with workplace bullying; (3) no special body or organization, or even no explicit duty of these organization exists to execute the legal framework. There are only several unclear rights specified in law or unclear duties of the bodies regards to workplace bullying. Therefore the legal framework for deterring workplace bullying is insufficient and ineffective.
3.Conclusion
The legal framework mainly consists of relevant provisions in the Fair Work Act 2009 (Cth), Anti-discrimination Act, Occupational Health and Safety Act and other relevant acts. These acts had provided workplace rights such as rights against coercion, undue influence and misrepresentation, anti-discrimination and so on. Organizations such as Fair Work Australia, Fair Work Ombudsman and Safe Work Australia perform several
powers which are relevant to deter workplace bullying.
As above analyzed, although a few law provisions which are relevant to deal with workplace bullying can be found in several laws, there is neither special legislation for workplace bullying nor special body or organization to implement the legal framework. Therefore it is concluded that the legal framework dealing with workplace bullying is ineffective and needs improvement.
Reference
…Employment law –Workplace Bullying‟: .au/articles/214/employment-law---workplace-bullying.aspx.
Division 2 and Division 3, Part 2 “ Health and Safety duties” of the Work Health and Safety Act 2011 No 10 (New South Wales).
Division 3 “Workplace Rights”, Part 3-1 of the Fair Work Act 2009(Cth).
Rick Catanzariti 2011, …Criminalisation of work place bullying‟: /australia/publications/detail.aspx?pub=5925
Miriam Bell 2011 …Brodie‟s Law ineffective in dealing with workplace bullying‟: /article/brodies-law-ineffective-in-dealing-with-workplace-bu llying-143641.aspx。