Bullying and harassment in the workplace

The Law Council is committed to ensuring that all members for the legal profession are treated fairly and respectfully. The Australian Human Rights Commission (AHRC) states that ‘all employers have a responsibility to make sure that their employees, and people who apply for a job with them, are treated fairly’. To ensure that employees are not discriminated against, harassed or bullied, workplaces should develop and implement workplace practices to address inappropriate workplace behaviour and respond to complaints effectively. Below are some examples of resources from the Law Council’s Constituent Bodies to assist legal practices in developing workplace practices and policies to effectively educate employees and respond to complaints regarding workplace bullying and harassment.

This webpage covers bullying and harassment in the workplace. For information on sexual harassment in the workplace, click here.
 

What is the law in relation to workplace bullying and harassment?
 

Under anti-discrimination law, it is unlawful to treat a person less favourably on the basis of particular protected attributes such as a person’s gender, sexual orientation, race, disability or age. Examples of unlawful actions can include harassing or bullying a person. Workplace anti-discrimination law is set out in federal and state statutes. There are specific legal provisions for sexual harassment, racial hatred and disability harassment.

Bullying

Bullying is defined under section 789FD of the Fair Work Amendment Act 2013 (Cth) as when an individual or group of individuals repeatedly behave unreasonably towards a worker and that behaviour creates a risk to health and safety.

Bullying includes a range of behaviours such as:

• yelling, screaming or offensive language;
• excluding or isolating employees;
• psychological harassment;
• intimidation;
• assigning meaningless tasks unrelated to the job;
• giving employees impossible jobs;
• deliberately changing work rosters to inconvenience particular employees;
• undermining work performance by deliberately withholding information vital for effective work performance;
• constant unconstructive criticism and/or nitpicking;
• suppression of ideas; and
• overloading a person with work or allowing insufficient time for completion and criticising the employees work in relation to this.

Harassment

Harassment provisions are included across a range of legislation, including the following:

• section 28A of the Sex Discrimination Act 1984 defines sexual harassment as when a person makes an unwelcome sexual advance, an unwelcome request for sexual favours, or engages in other unwelcome conduct of a sexual nature in relation to a person. This occurs in circumstances where it is possible that the person harassed would be offended, humiliated or intimidated. Sexual harassment can be subtle and implicit rather than explicit;
• section 18C of the Racial Discrimination Act 1975 prohibits offensive behaviour based on racial hatred. Offensive behaviour includes an act that is likely to offend, insult, humiliate or intimidate another because of their race, colour or national or ethnic origin; and
• section 25 of the Disability Discrimination Act 1992 prohibits harassment in relation to an employee’s disability.

There is equal opportunity legislation in each state and territory which also deals with sexual harassment at work.

According to the AHRC, some examples of harassment include:

• telling insulting jokes about particular racial groups;
• sending explicit or sexually suggestive emails or text messages;
• displaying racially offensive or pornographic posters or screen savers;
• making derogatory comments or taunts about a person’s disability; or
• asking intrusive questions about someone’s personal life, including their sex life.

Employers have a common law duty to take reasonable care for the health and safety of their employees, as well as additional duties under federal and state or territory work health and safety legislation. An employer’s duty of care to its employees may be breached if bullying or harassment (including sexual harassment) occurs within the workplace. Employers should be aware of the obligations and duties set out in relevant work health and safety legislation in each state and territory.

The Australian Solicitors’ Conduct Rules and Legal Profession Uniform Conduct (Barristers) Rules outline a common set of professional obligations and ethical principles solicitors and barristers are bound by when practicing, including when dealing with their fellow legal practitioners. This includes the following rule:

42. Anti-discrimination and harrassment
42.1 A solicitor must not in the course of practice, engage in conduct which constitutes:
42.1.1 discrimination;
42.1.2 sexual harassment; or
42.1.3 workplace bullying.

The Rules rely on the definition of bullying and harassment as exists under the applicable state, territory or federal anti-discrimination or human rights legislation.
 

Resources to address harassment and bullying in legal practice
 

A number of the Law Council’s Constituent Bodies and other legal organisations have resources that may assist workplaces in developing and implementing workplace bullying and harassment policies, including the following:

• The New South Wales Bar Association has developed some resources which address workplace bullying and discrimination.
  • The Model Bullying Best Practice Guideline provides a structure to assist in resolving issues of workplace bullying, promotes the Barristers’ Conduct Rules and operates in conjunction with the Association’s Diversity and Equity Policy.
  • The Model Harassment, Discrimination, Vilification and Victimisation Best Practice Guideline provides a structure to assist in resolving matters of harassment, discrimination, vilification and/or victimisation in the workplace, while also promoting the Diversity and Equity Policy and the Barristers’ Conduct Rules.
• The Queensland Law Society provides a list of resources relevant to the Queensland jurisdiction on discrimination, bullying and harassment in the workplace.
• The Law Society of Western Australia has provided some resources which address workplace bullying and discrimination. The Law Society has also published a report Towards Dignity and Respect at Work: An exploration of work behaviours in a professional environment. The report includes a study of issues faced by lawyers in the Western Australia legal environment, including bullying and harassment. It also provides recommendations for effective preventative strategies.
• The Victorian Bar Association have published three policies against bullying, discrimination and sexual harassment. Their website also includes a complaint and report form to allow for complaints or the reporting of occurrences of bullying, discrimination or sexual harassment to be made against barristers by barristers, or by persons who engage with barristers.

This webpage provides general information only about the subject matter covered. It is not intended, nor should it be relied on, as providing legal advice. The Law Council encourages organisations, employers and employees to seek their own independent legal advice if required.

Last Updated on 26/08/2020

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