The Legal Profession and the new “Anti-Bullying” laws

The Legal Profession and the new “Anti-Bullying” laws
Paul Lorraine and Greg Robertson
From 1 January 2014 the Fair Work Commission gained new jurisdiction to make orders about stopping bullying in the workplace. The first decisions under the new legislative regime are now appearing. For lawyers, any new legislation adds to the range of matters about which advice must be given, but these changes also should cause lawyers to think about the effect on their own conduct, and their own practices.

What is bullying and why does it matter?

Bullying is one of those things that people can instinctively recognise when confronted by it, but which is very difficult to define. At the heart of bullying is an abuse of a power relationship, where the weaker person is repeatedly and deliberately put under stress. It needs to be distinguished from a clash of personalities or difference of opinion, where the clash or difference is between equals. Bullying has been defined as “the repeated less favourable treatment of a person by others in the workplace, which may be considered unreasonable and inappropriate workplace practice”, or as “behaviour that is offensive, intimidating, humiliating, or that degrades, ridicules or insults the person at work”.
In 2004, the Law Society of New South Wales described bullying as “behaviour that intimidates, offends, degrades, insults or humiliates an employee, possibly in front of co-workers, clients or customers and which includes physical or psychological behaviour”. The Law Society gave several examples, which came from real-life instances that had been supplied by NSW Young Lawyers:

• Aggressive or frightening behaviour such as swearing, shouting, intimidation or threatening violence;
• Threats to make, or actively making, someone’s work or home life difficult, for example, constantly calling the person at home late at night and on weekend, spreading false accusations about a person with the result that they are ostracised;
• Threats of, or actual, assault against someone, or damaging or threatening to damage someone’s belongings, for example, shoving the person, pulling the person’s hair.
• Rude, belittling or sarcastic comments, for example, “you’re hopeless”, “she’s on her way out”.
• Abusive, belittling or intimidating phone calls, emails, notes etc.
• Baiting or unreasonable teasing, for example, singing derogatory songs and inserting the person’s name, cruel nicknames.
• Nasty practical jokes.
• Publicly belittling someone’s opinions, or dismissing that person’s contribution without good reason, including in front of clients and work colleagues.
• Standing in someone’s way, or deliberately blocking his or her path in an intimidating manner.
• Deliberate and unreasonable isolation or exclusion from work discussions, communication or other work-related activities, for example, deliberately withholding work flow so that person cannot make firm budget.
• Ignoring the person.
• Abuse of management or supervisory power such as
  • excessive and unreasonable work scrutiny;
  • branding as a troublemaker a person who raises legitimate workplace grievances, and taking no action to address the grievance.
  • inappropriate or unreasonable blocking of promotion, training, development or other work opportunities; or
  • constantly and inappropriately changing and/or setting impossible deadlines, tasks or targets;
  • inappropriate or unreasonable criticism of, or punishment about, someone’s work or behaviour;

In a profession where one of the fundamental ethical duties is to “be … courteous in all dealings in the course of legal practice”, it is perhaps surprising to find that when the Law Society surveyed its members that year, some 22% of respondents reported having been bullied or intimidated (24% of females and 18% of males); 12% reported discrimination (16% of females and 6% of males) and 14% reported harassment (16% of females and 11% of males). Recent experience suggests that very little has changed and that bullying is still to be found in the profession. This accords with other surveys of industry generally, with almost a third of Australian workers claiming to have been bullied at work.
Why bullying matters can be seen on two levels. One is the human level. Bullying can have a devastating effect on health and well-being, and even life itself (even recently, there have been reports of suicide by a young worker subjected to bullying at work). People subject to bullying report high stress levels, anxiety, sleep disturbances, feelings of social isolation at work, panic attacks, impaired ability to make decisions, loss of self-confidence and self-esteem, and even depression and mental illness.
The other level is the cost. While it is difficult to be precise about the cost of bullying to the economy (apart from any other reason, so much bullying goes unreported) it has been estimated that bullying costs Australian business a total of between $10 billion to $36 billion per year. On a micro level, for each business, bullying can reduce efficiency and productivity, increase absenteeism, affect morale even of staff not involved, and increase worker’s compensation claims and premiums. Most employees who have been bullied leave their employment, adding recruitment and training costs to the bill. That does not take account of the risk of being sued by the bully and even by the perpetrator, or being prosecuted for breach of work health and safety legislation.

A brief overview of the legislation

Who can apply?

Under section 789FC of the Fair Work Act, a worker who reasonably believes that he or she has been “bullied at work” can apply to the Fair Work Commission for an order.
The Act picks up the definition of “worker” from the Commonwealth work health and safety legislation, where a “worker” is defined in broad terms as a person who does any “work” for a person conducting a business or undertaking, irrespective of the capacity in which that person does the work. The safety legislation specifically includes, though not exclusively, work as an employee, contractor, sub-contractor, employee of a contractor or sub-contractor, an employee of a labour hire company who is assigned work in the person’s business or undertaking (that is, the business or undertaking of the principal, not of the labour hire company); outworkers, apprentices, trainees, students undergoing work experience and volunteers. Provision is also made for the regulations to expand this class. Thus the concept of “worker” is extremely broad (though not without limits—in a recent decision, the Fair Work Commission has held that a person in receipt of an income support payment in order to care for his daughter who had a significant disability did not perform “work” for the Department that administered the scheme and so was not a “worker” in terms of the legislation). Apart from clients and visitors, most people present (at least those behind the front desk and outside the conference rooms) at a legal office will be within the definition of a “worker”.

What conduct is covered?

The Act applies where a person is “bullied at work”. This occurs if the person is a worker at work in a constitutionally-covered business and an individual or a group of individuals “repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member” and “that behaviour creates a risk to work health and safety”. The Act expressly excludes a “reasonable management act carried out in a reasonable manner.”
In legal practice, then, if a person (it need not be another employee or even a worker) behaves repeatedly towards a “worker” at work and that conduct creates a risk to work health and safety, then the worker can approach Fair Work Australia. To return to the examples from the Law Society given above, for a person to repeatedly deliberately and repeatedly exclude a worker from conversation, or repeatedly belittle a worker, risks an application being made, because that conduct could affect the health of the victim of the attacks.

What can be ordered?

The Commission has a very broad power to make any order “to prevent the worker being bullied at work”, but cannot make an order for payment of a money amount. The range of orders that can be made thus seems limited only by the general necessity to act judicially and reasonably. In the only order made that has been reported so far, the orders included orders that the person alleged to be the “bully”:

• to have no contact with the worker alone;
• to make no comment about the worker’s clothes or appearance;
• to refrain from sending any emails or texts to the worker except in an emergency;
• to “complete any exercise” at the employer’s premises before 8am (and ordered the worker not to arrive at work before 8.15am); and
• not to raise work-related issues without first notifying the employer’s chief operating officer or his subordinate.

Does it apply to my firm?

For the legislation to apply, the worker must be at work in a “constitutionally-covered business”. For a law firm, the relevant parts of the Fair Work Act definition of a “constitutionally-covered business” will be:

• a business or undertaking that is conducted by a “constitutional corporation”; or
• a body corporate incorporated in a Territory; or
• a business or undertaking that is conducted “principally” in a Territory.

There will be no doubt that a law firm (even a sole practitioner) will be a “business or undertaking”. The term is again derived from the harmonised work health and safety legislation, and under section 5 of the Commonwealth Work Health and Safety Act 2011, the concept of “business or undertaking” is extremely broad. The Explanatory Memorandum to the Model Work Health and Safety Act noted that “The phrase ‘business or undertaking’ is intended to be read broadly and covers businesses or undertakings conducted by persons including employers, principal contractors, head contractors, franchisors and the Crown.” Section 5 is not a traditional definition, but what section 5 does is to indicate what will be included and what will be excluded from the concept of “person conducting a business or undertaking” for the purposes of the Act. Thus, a person conducts a business or undertaking

• whether the person conducts the business or undertaking alone or with others; and
• whether or not the business or undertaking is conducted for profit or gain.

The concept specifically includes a business or undertaking conducted by a partnership or an unincorporated association, and in the case of a partnership, includes each partner of the partnership.
However, just because a legal practice is a business or undertaking is not enough to bring a law practice into the scope of the anti-bullying legislation. The practice must also fall into the concept of a “constitutional corporation”. The Fair Work Act defines this to mean “a corporation to which paragraph 51(xx) of the Constitution applies”. That placitum refers to “foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”. A recent decision of the Fair Work Commission has rejected a claim for relief under the legislation because the place where the worker was working was not a constitutional corporation because, while a corporation, it was not a trading corporation.
Law firms are clearly “trading” in the relevant constitutional sense, and incorporated practices will be covered by the legislation.
But not all law firms are corporations, and the legislation will not apply to a sole practitioner or to a true partnership, unless those practices are conducted principally in a Territory. Nor will it apply to in-house lawyers who work for organisations that are not “trading or financial” corporations, nor to lawyers employed in some not-for profit legal centres. Given the definition of “business or undertaking” for partnerships, there will no doubt be some difficult issues of partnership practices that are largely based in a State but having one or more partners based, for example, in the Australian Capital Territory. Arguably the “business or undertaking” (being the relevant partner) in the Territory is covered, even if the partnership is not otherwise under the concept of a constitutional corporation.
And lest you think that you are free to bully if you are in an unincorporated partnership, remember that bullying can still amount to a breach of contract, can still give rise to action, and can be a criminal offence in some jurisdictions.

What does “at work” mean for a law firm?

The legislation applies if a person is bullied “at work” but what does “at work” mean, particularly for a lawyer? The work health and safety legislation uses the term “at work, but does not define it, so it carries its ordinary meaning. The term  “workplace” is defined in very broad terms as a “place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work”. This means that being at work will include places like entry areas and rest rooms, but will also extend to homes and accommodation where the worker is expected to or does carry out “work”.
For lawyers, they will also be “at work” when they are in Court, in Counsel’s chambers, and at client sites and at meetings with other lawyers. With so many lawyers doing work from home this can increase the reach of the legislation.
This will no doubt raise some issues when, for example, an abusive co-worker sends text messages, or phone calls to a worker while the worker is at home carrying out duties for the employer. Will all such messages fall within the concept of being bullied “at work”? There is no reason to think that the Commission would not see that as being “at work”. Other issues will no doubt arise when social media is used as part of the bullying conduct. Are these activities part of being “at work”? It would not be hard to imagine that abusive comments posted on Facebook could be still within the realm of being bullied at work, even if the comments were read and received at home. A similar issue arises with the use of mobile devices: smart phones and tablets provided by the employer could mean the worker is “at work” anytime the device is checked, allowing conduct that may otherwise be outside of work to be caught by the legislation.
Similarly, the “bully” does not have to be “at work”—the legislation only requires that the worker be bullied “at work”. So another person could still bully that person even if the bully was not physically present in the workplace, or even if they were a stranger to the workplace. So, for example, a person in their own home could bully a worker at work by sending messages to the worker; a client could bully a person at work during a client meeting, or a barrister could bully a solicitor during a conference in a room in the court complex.

Some issues for lawyers

There are some particular issues that will be particularly relevant for lawyers.
As noted above, the person does not have to be a fellow worker for the legislation to apply. In theory, there are a number of situations where the legislation may apply.
The first is in the area of abuse by clients or former clients. In some areas of law, such as family law, there is a heightened risk of clients becoming persistently aggressive towards staff. In these circumstances, or where former clients continue to make contact and be abusive, therefore, a lawyer or other affected member of staff could apply for an order against an abusive client, or former client.
Secondly, the legislation could operate in the area of dealings with other members of the profession (though there are other avenues that could be more appropriate, such as a complaint about professional misconduct, and more effective remedies in some cases, such as ending the retainer). An instructing lawyer in a long running case could apply for an order against a barrister that was a bully during court proceedings. On the face of the legislation, there does not appear to be anything to prevent an order against a bullying judge, though there will of course be issues of judicial independence and comity, making it highly unlikely the Commission would ever make such an order.
Thirdly, and perhaps of more relevance, is that such orders could be sought against the “super-star” or “rainmaker” in a firm, where management is often loathe to act for fear of upsetting the income brought by such practitioners. Some lawyers have long considered themselves virtually untouchable, given that their firms appear to tolerate appalling conduct simply because the lawyer earns the firm far too much to risk a reprimand. In the past, it has been easier (and cheaper) to pay the victim to leave, rather than deal with the problem. Now, the victim can apply for relief and orders that the bullying cease, which can mean the firm will need to make substantive changes to prevent the conduct. It will be interesting to see if this legislation is used in such circumstances, and if so whether it will eventually force a cultural change in law firms where this occurs.

Steps to take

Lawyers, of all people, need to understand that the amendments to the Fair Work Act are framed in terms of bullying as a work health and safety issue. This means, particularly in jurisdictions that are part of the harmonised work health and safety regimes, that eradication of bullying is part of work health and safety compliance. For that reason, it cannot be ignored. Even if the firm falls outside the scope of the Fair Work Act anti-bullying provisions, work health and safety legislation will impose an obligation to take steps to eradicate bullying or to prevent it occurring. The fact that there is legislation about bullying will mean that, if it ever was possible to ignore the work health and safety aspects of bullying, it will no longer be possible to do so.
The primary duty under work health and safety legislation is to ensure, so far as is reasonably practicable, the health and safety of:

• workers who are engaged, or caused to be engaged by the person conducting the business or undertaking; and
• workers whose activities in carrying out work are influenced or directed by the person conducting the business or undertaking, while the workers are at work in the business or undertaking.

The combination of work health and safety legislation and the Fair Work Act changes public expectations and will require employers to shift the “boundaries” of what is and is not considered acceptable. Having new laws means employers have an opportunity to “re-set” those boundaries, so is an opportunity to do something pro-active about the issue of bullying. There needs to be an “Anti-bullying ethos”, within the firm, with senior lawyers showing leadership in this area so as to change the culture of the firm. Practical strategies need to be in place. These include:

• a clear and unambiguous policy, demonstrably supported by management, that makes it clear what constitutes bullying and condemns bullying;
• training given to all staff (including senior staff and in particular the senior lawyers who may consider themselves above the policy) on the issue;
• a mechanism introduced where victims of bullying can report what is happening without fear of victimisation;
• a mechanism to monitor workloads and work allocation to ensure fairness and compliance with work health and safety requirements around excessive hours;
• a properly functioning grievance policy;
• fair and efficient processes for performance management and disciplinary action, without being so prescriptive that management is constrained from acting in appropriate cases; and
• senior management in particular showing by example that bullying is unnecessary and that it is not tolerated as part of the firm culture.

All of this takes time and effort, but (a) it avoids the risk of successful claims against the firm for bullying; (b) it reduces the risk of breach of work health and safety legislation; (c) it makes for a more productive workforce; and (d) allows people to be treated with the fairness and dignity they deserve.

Finally …

Lawyers are in a privileged position—highly educated, articulate, well-resourced and with easy access to the legal system and to law-makers alike. With privilege comes responsibility. Lawyers should work towards preventing bullying in their own firm so that if their local law society carried out another survey of the profession, bullying would no longer be identified as a major problem. They should also work towards educating their corporate clients, so that it is clear to corporate Australia that a culture that tolerates bullying is a huge legal risk that cannot be allowed to continue. And they should work to ensure that those subjected to bullying are given a voice, whether that be in court or in our parliaments. As a profession we need to make it clear that bullying is unacceptable in any form and in any place.
 
Authors:
Paul Lorraine, Special Counsel and Team Leader

As a senior lawyer with the firm, in addition to being an experienced legal practitioner, Paul has a wealth of industrial relations and people management expertise from the public and private sectors. With over 30 years in employment law and workplace relations, Paul’s diverse career includes significant experience in complex industries such as construction, rail, finance, airlines, and the public sector, in State and federal systems. As a consultant, Paul assisted organisations with their change management and employee relations strategies. As Executive Director of Industrial Relations Victoria, and previously as Assistant Director General of the NSW Department of Industrial Relations, Paul has developed and implemented industrial relations policy and legislation for the State Governments of Victoria and NSW. Previously, at the Cabinet Office Paul advised the NSW Government on industrial relations, and earlier in his career he was Industrial Relations Manager at Westpac.
 
Paul holds a Bachelor of Laws (Honours) Degree (LLB), and a Master of Laws (LLM) majoring in Dispute Resolution. His special interest is in conflict resolution. As well as being an experienced negotiator, Paul’s formal studies included extensive practical training in advanced negotiation, facilitation, and mediation techniques. Paul is also a member of the Harmers investigations team, which conducts specialist investigations for clients into matters such as workplace incidents, grievances, work health and safety issues, and allegations of bullying, discrimination, and harassment.
 
Greg Robertson, General Counsel and Team Leader

Greg was admitted as a solicitor in 1975. He worked in a variety of litigation roles in private practice before joining the New South Wales Department of Industrial Relations as a legal officer in 1979. That year he also gained a Master of Laws degree (honours) from the University of Sydney. Greg served as Deputy Industrial Registrar from 1983 to 1991 and as Industrial Registrar from 1991 to 1999. As a consequence, Greg has extensive experience of the New South Wales Industrial Relations system.

Greg joined the firm in 2000 and has since been involved in all areas of the firm’s practice. He has been involved in major litigation in the Industrial Court of New South Wales, and has extensively advised on issues relating to the contract of employment and employment law generally. Greg has advised registered organisations (both employee and employer associations) on rules and registration issues, and has been involved in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal and the High Court) on a variety of matters, including industrial relations issues, employment, restraints of trade and discrimination matters.

Company Profile:
 
Harmers Workplace Lawyers ('Harmers') was formed in 1996 and is one of Australia's largest stand alone employment and industrial law corporate advisory practices with offices in Sydney, Melbourne and Brisbane. The firm focuses on innovative, high quality problem solving and a preventive approach to law across all areas of employment and industrial law. Harmers is unique in that it provides advice to participants across the spectrum of workplace relations in Australia. This includes primarily blue-chip corporate employers - ranging from companies ranked in the Top 5 in the world, on a capitalisation basis, through to small businesses; employer groups and major unions; government at all levels; as well as an array of individuals including prominent CEOs and media personalities, through to pro bono clients otherwise unable to access justice without the firm’s support.  Harmers has also run some of Australia’s most innovative landmark cases across the areas of discrimination, harassment and industrial relations law.
 
The firm's practice areas are as follows:

• Change Management;
• Industrial Relations;
• Employment;
• Occupational Health & Safety;
• Human Rights & Equal Opportunity;
• Legal Risk Management;
• Investigations; and
• Training.

 
Harmers is the Australian member firm for L&E Global, the world’s very first international integrated legal alliance of premier and award winning labour and employment law firms which specialise in providing counsel on cross-border labour and employment law issues in North America, Latin America, Europe and the Asia Pacific Region. L&E Global provides seamless counsel on  labour relations, employment law, immigration law, and employee benefits – as one firm – with a unified fee-for-all services approach, across borders throughout the world. This provides Harmer's corporate clients with a global network of some 300 partners and 950+ lawyers.
 
Harmers is a multi-award winning employment law firm, having won the ALB Australasian Law Award for 'Employment Specialist Firm of the Year" for seven years  (2006 to 2011 & 2013); the 2013 and 2012 Legal Media Group Euromoney Australasian Women in Business Law Awards - as 'Best Firm in Sydney for Women in Business Law' .  The firm has also received a number of prestigious awards for people management, innovation, workplace excellence and the promotion of work life balance. In excess of 25% of the firm’s profits in its first 17 years of operation have been contributed to the promotion of human rights and justice internationally - including support for a number of schools, hospitals and community services in Africa and indigenous Australia.