Bullying inquiry needed: WorkSafe ACT should examine the Kimberley Kitching claims

Senator Katy Gallagher, top left, Senator Kristina Keneally, centre, and Senator Penny Wong, bottom right.

Given the Victorian precedent, there is a clear case for WorkSafe ACT to investigate the claims of bullying against Labor senators Penny Wong, Kristina Keneally and Katy Gallagher.

I can’t emphasise strongly enough that any WorkSafe investigation does not mean that the senators are guilty of an offence but, along with the Victorian case, the latest bullying claims may set precedents that will determine what the bullying sections of the Occupational Health Acts actually mean.

Under the OH&S Acts bullying is classed as a criminal offence and among the penalties are jail terms. Moreover, if death can be linked to proven cases of bullying then the industrial manslaughter provisions, with their much longer jail penalties, can be triggered.

The OH&S acts were framed by both sides of politics with employer/employee situations in mind. But it is the way major political parties conduct their affairs that is now on the front line.

Victoria’s WorkSafe has started an investigation into allegations by upper house MP Kaushaliya Vaghela that she was bullied by a former adviser to Victorian Premier Daniel Andrews. Vaghela claims she first raised her complaints in April 2019.

There have been demands in Canberra that Opposition Leader Anthony Albanese conduct an investigation into the bullying allegations against Wong, Keneally and Gallagher.

I think he is right not to go down that path when a properly constituted body with the authority and powers to conduct such an investigation is available to undertake the task. And if theoretically they find there was no bullying then the names of those currently accused would be cleared by an independent body – not an inquiry created by their own party.

If Work Safe ACT decide to investigate bullying allegations by the late senator Kimberley Kitching they will be guided by the explanation of workplace bullying on the WorkSafe ACT web site:

“Workplace bullying is repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.

“Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time.

“Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.

“Bullying can impact an organisation through reduced productivity, staff turnover and legal costs …

“Unreasonable behaviour may involve unlawful discrimination or sexual harassment, which in isolation (not repeated) is not workplace bullying. Discrimination on the basis of a protected trait in employment may be unlawful under anti-discrimination, equal employment opportunity, workplace relations and human rights laws.

“Differences of opinion and disagreements are also generally not workplace bullying. However, in some cases, conflict that is not managed may escalate to the point where it becomes workplace bullying.”

Leaving aside the facts in both the Victorian and Canberra alleged bullying cases, I find it disturbing that, given the differences of opinion that the above description of workplace bullying allows for, we should have such harsh penalties for bullying.

Indeed the severity of the penalties might make it difficult to gain a guilty verdict. I would’ve thought it makes much more sense to separate out allegations of bullying from the traditional safety requirements of the workplace Act.

I can see that there will be differences opinion on this matter, especially since an elongated investigation into the latest accusations could make it difficult for individuals to be ministers any new government.

If there is an investigation the result might take in the vicinity of two or three months, which would take it into election territory.

If there is no investigation then after six months a member of the public can request an investigation – exactly what happened in Victoria over the hotel quarantine affair. That case is now headed to the courts.