When describing her two years of employment as a labourer at Melbourne based civil construction company Winslow Construction, Kate Mathews told ABC it was “A filthy experience every day.”

During that time, spanning from August 2008 until July 2010, Mathews reported being subjected to behaviour such as being grabbed by other workers (who pretended to perform sex acts on her), slapped on the bottom and asked, ‘would you do this?’ when shown pornographic images. She was also commonly referred to as ‘useless, spastic and bimbo.’ On one occasion, a co-worker remarked that ‘anything that bleeds once a month should be shot.’ Another told her that ‘I am going to follow you home, rip your clothes off and rape you.’

When she raised her complaints with her employer, Matthews was laughed off.

Not surprisingly, the Supreme Court of Victoria came down hard. On 18 December 2015, it awarded Matthews $1.36 million in compensation. Supreme Court Justice Terry Frost agreed with medical advisers that Matthews had been a good worker but now suffered from a chronic psychiatric illness and was unlikely to work again.

Whilst Matthews’ experience was extreme, bullying most likely impacts a significant number of workers within the building and construction sector. In a study of 169 first year apprentices enrolled in building courses which was undertaken by the National Centre for Education and Training on Addiction at Flinders University, more than one in 10 (11.8 per cent) reported high levels of bullying within their workplace.

Across all industries, 722 complaints about bullying were made to the Fair Work Commission throughout 2016/17 – 22 of these in construction. As much behaviour goes unreported, this no doubt understates the extent of the problem. Last year, renowned construction industry lawyer Professor Kim Lovegrove wrote that claims for bullying throughout the sector were on the rise. Employers, Lovegrove warned, were underestimating their exposure in this area.

Politicians have acted. Amendments to the Fair Work Act in 2013 resulted in the adoption of a statutory definition of bullying and empower workers who are bullied at work to apply to the Fair Work Commission to intervene in order to have the behaviour stopped.

This raises questions about what constitutes bullying in the workplace, why bullying occurs, how employers can prevent bullying and the legal responsibilities which employers have in respect of such behaviour.

Busting bullying myths

According to Sherisse Cohen, a bullying and harassment trainer at Sydney based Associated Counsellors and Psychologists, misconceptions about bullying revolve around several areas.

First, there is a misbelief that a singular and one-off incident can represent bullying. Whilst any poor behaviour is serious, Cohen says bullying represents a pattern of behaviour over a period of time. Indeed, she says, it is important that we do not bandy the word ‘bullying’ around too loosely.

Second, there is a misconception that for behaviour to constitute bullying, the person who commits the behaviour needs to have intended to harm the victim. Whilst much bullying does involve malicious intent, Cohen says behaviour can still constitute bullying irrespective of whether or not harm to the other person was meant.

In fact, Cohen says, those accused of bullying are sometimes unaware about how their actions are hurting others. In one recent case, a male manager stopped what he was doing after becoming aware how his behaviour was impacting a female worker who felt she was being bullied. Before being approached about the problem, the manager had been oblivious to the impact of his actions.

Accordingly, Cohen says it is important to give people the benefit of the doubt. She encourages those who feel that either they or someone they know is being bullied to avoid jumping to conclusions about the intention of the person committing the alleged behaviour.

Further, Cohen says behaviour can be construed differently by different people. What one may perceive as harmful behaviour, she said another may see as harmless fun. This is particularly the case given the degree of change which has taken place over recent decades as to what is and is not considered to be acceptable. Use of profane language, for example, may be considered acceptable and even ‘normal’ by a contractor or manager who completed their apprenticeship 30 years ago but might be construed as being offensive by a young worker today. In the security industry, for instance, Cohen said older heads were finding themselves challenged as many types of previous acceptable ‘banter’ was no longer acceptable.

A third misconception revolves around notions about bullying necessarily an abuse of power. Whilst power abuse is one form of bullying, Cohen says this is not necessarily at the core of unacceptable behaviour in every case.

What bullying is and is not

From a legal perspective, Section 789FD of the Fair Work Amendment Act 2013 considers a worker to have been ‘bullied’ in cases where:

• An individual or group of individuals repeatedly behaves unreasonably toward either the individual worker or a group of workers of which the employee is a member; and
• That behaviour creates a risk to health and safety.

Based on this, Catherine Dunlop, a partner and work, health and safety law specialist at law firm Maddocks, says there are several characteristics which distinguish bullying from other behaviour such as robust management feedback or good natured ‘banter’ and jokes.

First, the behaviour must be repetitive. Whilst it can be serious, one-off behaviour does not constitute bullying under the statutory definition above.

Second, it must be unreasonable. Whilst robust feedback is never pleasant, Dunlop says this will constitute bullying only where an objective person would regard the conduct as going beyond what was reasonable in the circumstances.

Banter and jokes are in a similar vein. Where a reasonable person would feel that these were good-natured, Dunlop says they would not constitute bullying. Where, however, they were unduly targeted at one individual or one group, then these may well meet the definition of bullying. Indeed, she says, jokes can be used as a subtle weapon by which to undermine or humiliate others. Where this happens, this behaviour (if repeated) may well constitute bullying.

Finally, the behaviour must create a risk to health and safety. Importantly in respect of bullying, Dunlop says this can include mental and emotional health as well as physical health and safety. Thus behaviour like that in the Matthews case above would almost certainly meet the definition of bullying.

Beyond legal definitions, Cohen says bullying is behaviour which either threatens or undermines one or more other people (intentional or otherwise) and is not reasonable in the context of the situation.

“It’s any behaviour which common sensically would be seen to undermine another person.” she says.

What it looks like on sites

According to Cohen, bullying can manifest itself in several ways. Whilst physical abuse is obvious, she said subtler behaviours are common. One is exclusion. This might happen where every worker bar one is given certain information or invited for drinks. Insensitivity around banter and jokes is another.

In one case, Cohen says she is aware of one worker who was (intentionally) denied access to the tools required to perform his work. In another case, a worker was competent but was taken off his role and given easier tasks (essentially demoted) and denied opportunities for training and promotion.

Finally, people could be intentionally made to work in the sun for long periods or repeatedly given tasks which no one likes to do.

In many cases, especially in male dominated environments, Cohen says workers are reluctant to speak out for fear showing weakness and/or making things worse. This is particularly the case where groups form and there is an expectation that those subject to poor behaviour would ‘man up’ and ‘cop it.’

Why it happens

Cohen says there can be several factors that lead to bullying situations.

First, there is the experience of others who are different to ourselves. This could be someone of a different gender, race, size, religion, age, or simply a person or group who differs from the bully in terms of beliefs, attitudes, likes/dislikes or habits and actions.

Cohen there are two reasons why people might bully someone who is different.

First, there are fear-driven responses. According to Cohen, a common desire amongst many is to feel a sense of familiarity in respect of our environment. When confronted with someone or a group of people who are different, people’s sense of security may be challenged. Where this happens, bullying can represent a mechanism of compensating for this and is essentially a defence mechanism for those who are perpetrating the unacceptable behaviour.

A special class of person who is vulnerable in this regard is the ‘tall poppy’ – the person or group who works faster than others or who adopts or suggests innovative solutions to problems. Occasionally, these can make others feel ‘shown up’ or made to look ineffectual.

Alternatively, difference can also be perceived as weakness. In such a case, the bully feels they are in a superior position to the other person and the behaviour could be a mechanism by which to elevate oneself.

There can be other causes as well. In some cases, people through promotions or other means could gain power or authority over others without possessing the emotional intelligence needed to use this in constructive ways. Alternatively, the person or group being bullied might have triggered memories of something which happened in the bully’s past. In such cases, the behaviour might be a projection of the anger or hurt associated with that past event onto the other person or group. Heavy levels of stress, uncertainty or perceived threat, as well, can be a ‘breeding ground’ for bullying.

Finally, bullies themselves may have been bullied, and may largely be mirroring behaviour to which they themselves have been exposed.

Employers legally exposed

From a legal perspective, Dunlop says employers face issues in three areas.

First, as mentioned above, amendments introduced into the Fair Work Act grant the Fair Work Commission the ability to issue orders for the behaviour to stop. This can include not just employees but contractors, union officials and others. The Commission cannot, however order compensation to be paid.

Second, there is state-based legislation relating to occupational health and safety. In addition to physical injury, this legislation covers mental injury and requires employers to provide a safe place of work from a mental and emotional perspective as well as a physical perspective. Where this does not happen, employers could find themselves under investigation from WorkSafe authorities and subject to prosecution.

Third, victims might seek compensation either through a standard compensation scheme or through common law damages.

Consequences can be significant. In the case of Wearne V the State of Victoria, for instance, a youth welfare case manager was awarded $625,000 in damages as a result of a breach of duty of care by her employer (Victoria Department of Human Services) to ameliorate the risk of psychiatric injury which resulted in a breakdown after more than 12 months of a deteriorating relationship with her immediate supervisor and left her unable to work.

Then of course, there is the amount involved in the Matthews case above.

Strong duty of care

Legally, Dunlop says employers have a strong duty of care to provide a safe working environment to their employees. This includes a duty to eliminate danger and prevent risks to their staff in terms of mental and emotional well-being as well as physical well-being.

Such a duty, Dunlop says, exists under each of common law, state-based occupational health and safety legislation (in each state) and the Fair Work Act.

Under this obligation, she says employers must do several things.

First, they need to train their staff about bullying and what does and does not constitute acceptable behaviour.

Next, they must actively monitor for signs of unacceptable behaviour. It is not acceptable, Dunlop says, for employers to sit back and wait for one of their staff to complain. Instead, they must be proactive and undertake active measure to ensure that their workplace is an environment in which all staff can feel comfortable and safe.

Where there is a complaint involved, the employer must investigate and address any legitimate grievances or unacceptable behaviour.

Notwithstanding the need to look at for all workers, Dunlop says there is a special need for employers to look out for those who are either particularly vulnerable to bullying or particularly likely to perpetrate unacceptable behaviour. Where a person had returned to work following time off necessitated by a mental health issue, for instance, Dunlop says it is important for them to have ongoing feedback as to how they are going.

What to do

In terms of what firms should do, Cohen points to six steps.

First, a robust policy is necessary. This should outline:

• what constitutes bullying and harassment (with mind to legal definitions)
• to whom the policy applies (managers, workers, contractors, customers, visitors and so on)
• examples (non-exclusive) of what bullying might look like
• a detailed description of processes which occur when alleged incidents of bullying are raised, including clauses on issues such as confidentiality and victimisation to encourage people to speak out.
• how the policy aligns with the firm’s corporate values and/or any applicable codes of conduct.

To ensure ‘buy-in’ Cohen encourages employers to involve workers in making this policy.

Once in place, the policy should shape the next step of education. This involves training for and conversation with managers and workers about what bullying is, how it can be prevented, what they should do if they or someone they know is being bullied, and how they themselves can contribute to a respectful workplace.

Third, it is important to create a culture in which everyone feels valued and respected. This includes speaking with workers and managers about how they themselves can contribute toward a respectful and inclusive culture.

Finally, a strong approach toward mental health awareness and stress management is needed. Stressed or pressured workers, Cohen says, should be encouraged to reach out and seek help rather than to project their pressure onto others in the form of bullying. Measures such as these, Cohen says, help to address upstream factors which lie behind potential bullying before these manifest themselves in unacceptable conduct.

All this must be driven by examples from the top – where Cohen says education also must start.

Where alleged incidents do occur, Cohen says these must be dealt with quickly and properly. The process itself must be equitable and fair to all parties. Notwithstanding any requirements for confidentiality, it must be as open and transparent as possible.

In addition, the focus must be on resolving incidents. In several situations, Cohen says avenues such as coaching and mediation have delivered a positive experience for all, along with stronger workplace relationships. By contrast, a more adversarial approach can see the parties become defensive.

Dunlop broadly agrees. On an overarching basis, she says there must be a commitment to a safe and respectful workplace in which expectations are understood by all. These must be embedded through training whilst management must be empowered to call out unacceptable behaviour. These expectations must be codified in a written policy and followed by senior people.

Australia has an issue with bullying on construction sites.

If we are to address this, action is needed in several areas.