Workplace bullying and harassment is not a new issue, and it remains a complex matter impacting workplaces across Aotearoa New Zealand. Research suggests that our country has higher rates of bullying than comparable countries, with as many as one in five workers experiencing bullying or harassment each year. In August 2022, the Human Rights Commission published a report that suggests Māori, Pacific, Asian, as well as disabled and bisexual workers, are disproportionately affected by bullying and harassment in the workplace.

This causes us to reflect on whether our legislative and regulatory frameworks are adequately designed to tackle this complex issue – and do they sufficiently encourage and enable employers to create a sustainable workplace that meets the “social” aspect of environmental, social and governance (ESG) objectives.

Given a growing emphasis on commitments to social considerations as part of employers’ ESG initiatives, such as diversity and inclusion, the absence of a robust framework to manage bullying and harassment in the workplace will mean an employer’s ability to achieve such objectives is severely hampered.

Workplace bullying and harassment also have a real and measurable impact on workers’ health and performance. It leads to decreased morale and increased absenteeism, turnover, and legal risk. It can also have a negative financial impact on both workers and organisations. For example, a worker may leave their role, but be unable to work or find a role with the same remuneration. Meanwhile, an organisation may have a reduced profit and increased costs in investigating and defending claims. This is simply unsustainable for any organisation, let alone any worker.

Despite the numerous legislative instruments and regulatory bodies available to deal with workplace bullying and harassment, there is no statutory definition for workplace bullying. Instead, employers rely on their own definition of workplace bullying or adopt WorkSafe New Zealand’s definition as set out in its Good Practice Guidelines on Preventing and Responding to Bullying at Work.

What are other jurisdictions doing?

Recently, we have seen changes to the regulation of workplace bullying and harassment in comparable jurisdictions, especially in Australia, which suggest that Aotearoa New Zealand may be falling behind on the legislative and regulatory front. These are set out below.

Recent developments in Australia

In June 2022, Safe Work Australia announced a range of amendments to the model work health and safety (WHS) laws. One of the most significant amendments was in relation to the management of psychosocial risk in the workplace. In short, these amendments include:

• the introduction of definitions for psychosocial hazard and psychosocial risk;
• prohibiting insurance and other indemnity arrangements covering liability for WHS penalties;
• enabling any inspector to issue a notice to produce documents or information within 30 days of an inspection; and
• enabling regulators to share confidential information or documents, obtained when exercising WHS functions, with another WHS regulator.

It is now up to each State and Territory to adopt these amendments. MinterEllison in Australia has discussed these amendments further here.

Victoria has also proposed additional regulations in relation to the management of psychosocial risk. These proposed regulations include:

• requiring employers, so far as is reasonably practicable, to:

  • dentify psychosocial hazards; and

  • eliminate any risk associated with a psychosocial hazard;

• if an employer identifies one or more of the prescribed psychosocial hazards, an employer must implement a written prevention plan that identifies the risk, identifies measures to control the risk, and includes an implementation plan for any identified measures; and

• establishing an additional reporting scheme for employers with more than 50 employees, including penalties for a failure to comply.

In New South Wales, legislation has recently been developed to explicitly address the risks associated with the impact of workplace bullying, including:

• amendments to the Fair Work Act 2009, giving the Fair Work Commission powers to make orders to stop ongoing workplace bullying or harassment in some instances;

• amendments to the Crimes Act 1990, classifying more severe forms of bullying or harassment as a criminal offence. This includes bullying that involves violence, including any sort of unwanted touching, or bullying that is threatening or harassing; and

• amendments to the Workers Compensation Act 1987, giving employees the right to lodge a claim for a workplace injury where they have suffered an injury (physical or psychological) because of bullying.

Recent developments in Canada

In Canada, legislation has been developed to expressly define and/or address workplace bullying (depending on the relevant state). Unlike in Aotearoa New Zealand, many Canadian jurisdictions have defined bullying separately or have included bullying as part of the definition of behaviours associated with harassment or violence. For example, Prince Edward Island has defined harassment in its Workplace Harassment Regulations.

Last year, Canada also introduced legislative requirements relating to employers preventing harassment and violence in federally regulated workplaces, including requiring those employers to develop a workplace harassment and violence prevention policy with the policy committee, the workplace committee or the health and safety representative.

Recent developments in the United Kingdom

Like Aotearoa New Zealand, the United Kingdom does not have a single piece of legislation that deals with workplace bullying and, instead, has a range of legislation, including the Equality Act 2010 and Employment Rights Act 1996. However, in March 2022, the United Kingdom became the eleventh country to ratify the International Labour Organisation’s Violence and Harassment Convention which, when it comes into force next year, will create a duty for employers to protect employees from all forms of violence and harassment at work, including from third parties such as customers or clients.

As at the date of this article, Aotearoa New Zealand has not ratified this Convention.

The state of play in Aotearoa New Zealand

While there have been no recent significant legislative or regulatory changes in this space, the New Zealand Government has turned its mind to the issue of workplace bullying. This can be seen in MBIE’s recent Issues Paper on Workplace Bullying, the proposed income insurance scheme, and through increasing engagement by
regulators on this issue. We expect this will result in the development of a more robust regulatory framework for tackling the issue of workplace bullying in Aotearoa New Zealand.

MBIE Issues Paper

In 2021, MBIE published an Issues Paper on bullying and harassment (including sexual harassment) at work. The Issues Paper sets out what MBIE understands about the nature and extent of bullying and harassment at work in Aotearoa New Zealand and examines the current systems for preventing and responding to such behaviour. This full Issues Paper can be viewed here.

The key findings of the Issues Paper are that:

• there is ineffective leadership and systems in place for the prevention of harm in the workplace;
• greater support is required for the implementation of bullying and harassment initiatives;
• bullying and harassment incidents are being addressed too late; and
• organisations should be able to respond in informal ways where appropriate, rather than treating it as a formal employment issue (e.g. using mediation with the focus on resolving the issue).

The recommendations of the Issues Paper include the following:

• the interfaces between regulatory systems could be improved (e.g. the Employment Relations Authority or Employment Court could refer an ongoing safety risk in an organisation to WorkSafe New Zealand);
• WorkSafe New Zealand could increase its role in engaging with, and supporting change in, sectors or organisations where an ongoing risk of bullying or harassment has been identified;
• further work on prevention could be done, noting that WorkSafe New Zealand is already undertaking further work in the psychosocial space, including:
  • developing new approaches in the psychosocial space to intervene where organisations have not adequately managed their risks, as well as where incidents of harm have occurred; and
  • embarking on a multi-year programme that will include developing a broad view on where to prioritise efforts to support organisations to better identify, assess and manage psychosocial risks in work environments (including unreasonable behaviours at work) and prevent physical and psychological harm); and
• the disputes resolution system under the ER Act and selected aspects of the HSWA need to be reviewed to address the issue of workplace bullying more effectively.

Public submissions on the Issues Paper closed on 31 March 2021. In November 2021, MBIE published a further report which summarises the feedback received. MBIE advised that this feedback will help inform:

• whether there are potential operational improvements that could be made to the services and information provided by regulators and operational agencies (e.g. MBIE and WorkSafe New Zealand);
• upcoming reviews of the disputes resolution system under the ER Act and selected aspects of the HSWA; and
• whether potential system changes are required to the country’s approach to managing psychosocial risk at work, including the role of organisations in managing their risks.

We have not seen any further proposed legislative changes to the ER Act and HSWA as yet. However, as MBIE progresses with some of the key recommendations listed above, this seems likely.

Regulator engagement

Regulators, including WorkSafe New Zealand, Netsafe and MBIE, also appear to be engaging more with the issue of workplace bullying and harassment. However, there is no indication that one of these regulators is going to take the primary place over others when it comes to regulating this issue.

Bullying and harassment in the workplace remains a complex but serious issue in New Zealand. Public consultation on this and related issues indicates change could be on the horizon. However, given the range of
legislation and regulators involved, there are a lot of moving parts that need to fit together to enable that change to take place.

Organisations do not need to wait for legislative change to make improvements to their workplace environments. Positive changes will make employment more sustainable for both the organisation and the workforce.

We encourage organisations to critically consider whether their own systems, processes and policies are fit for purpose to address workplace bullying and harassment. This could include assessing the risk of workplace bullying and harassment and implementing strategies to eliminate or minimise that risk, including a comprehensive policy, training and fostering a speak up culture.

This article was co-authored by Eloise Callister-Baker, a Senior Solicitor in our Employment team.