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Individual/Organisational name: 230 Victorian Automobile Chamber of CommerceWhat state/ territory are you from? Victoria

Model Work Health and Safety Codes of Practice - Public Comment Response Form

INTRODUCTION

The Victorian Automobile Chamber of Commerce (VACC) is an employer organisation representing the interests of more than 5500 members in Victoria and Tasmania in the retail motor industry. VACC members are predominantly small businesses with 90% of the members employing less than 20 employees. The various divisions in the retail motor industry are mechanical repair, body repair (including spray painting), automotive dealers, used car traders, auto electrical, engine re-conditioners, tyre dealers, radiator services, farm machinery, motorcycle dealers, service station and convenience stores and towing operators.

VACC provides comprehensive advice and assistance to help members run their businesses more effectively. VACC, on behalf of its members, tenders this submission in response to the Issues Paper on the Draft Model Work Health and Safety (WHS) Codes of Practices that are due Friday 16 December 2011.

The views expressed in this submission have been developed through a number of avenues:

VACC’s OHS and Industrial Relations Department which have extensive experience in the practical application of OHS legislation, and its interaction with industrial instruments and other legislative provisions regulating the employment relationship in the retail motor industry;

Views of members expressed through day-to-day contact who use VACC’s advice, training and consultation services;

VACC as a member of Australian Chamber of Commerce and Industry (ACCI) has consulted through the ACCI Occupational Health and Safety Working Party; and

Discussions with other key stakeholders.


1) Safe Design Of Building and StructuresComments due by Friday, 16 December 2011Comments: (Please include section/page numbers).No Comment

Impacts: Do you anticipate any potential costs or safety benefits of complying with this code that are different to current requirements in your jurisdiction? If so what are they?

2) Excavation WorkComments due by Friday, 16 December 2011Comments: (Please include section/page numbers).No Comment


3) Demolition WorkComments due by Friday, 16 December 2011Comments: (Please include section/page numbers).No Comment


4) Spray Painting and Powder CoatingComments due by Friday, 16 December 2011Comments: (Please include section/page numbers).

General Comment:VACC is of the opinion that this spray painting and powder coating code of practice should be shorter, sharper guidance material as opposed to a code of practice. The reason for this is that this code is too general for all the types of spray painting that occurs across different industries and situations. When reading this code of practice it always reverts back to the application of spray painting for vehicles and it fails to pick up other types of spray painting or spray applying, for example, spray painting of walls.

Page 6 Section 2In table, 1 the examples in the first row for ‘hazardous chemicals hazards’ is incorrect. It states, ‘Products containing iso-cyanates, paints, solvents, adhesives, resins, rust removers, rust converters, lacquers and degreases’, all but iso-cyanates are products. After iso-cyanates it should continue to list other hazardous chemicals such as lead, methanol, benzene, etc. You can get paints and degreases that are not hazardous or contains hazardous chemicals.

Page 7 Section 2.1The last paragraph on this page outlines a requirement to label containers, which is not practical. The first paragraph uses the word ‘ensure’ to outline an absolute duty to label all containers as required in table 2 on page 8, which is incorrect with regards to the spray painting process. The opening sentence should be changed to ‘ensure so far as reasonably practicable’. In automotive body repair businesses, the spray painter will mix in a plastic container many paints to produce a certain colour and there wouldn’t be an automotive workshop who could comply with this labelling requirement. Labelling the short time used disposable containers will be time consuming and will achieve no safety outcome. This code of practice needs to outline practical solutions that are reasonably practicable to comply with and not place a duty where it is not required.

Page 8 The text below the heading of ‘Lead’ outlines that workers who carry out spray painting could be exposed to lead when repainting old motor vehicles. This paragraph is incorrect as the old vehicle would have been prepared (sanded back and cleaned) before spray painting. The lead exposure is a


risk to body repairers who would prepare the car, not the spray painter. The code fails to acknowledge that there are two different skilled trades, there are body repairs who repair the physical damage to a vehicle and prepare the car for spray painting, then there are spray painters who mix and match paints and spray paint. The intention of this code of practice is based on spray painting application, it shouldn’t include every process prior to spray painting such as mechanical repair, preparation and assembly of items that require spray painting.

Page 9The last sentence under the title of ‘Hazardous Chemical Register’ states:

“the register must contain a list of hazardous chemicals found in paint, coatings, solvents and thinners, fillers, strippers and cleaning products”.

This is grossly incorrect as the Work Health and Safety Regulation Hazardous Chemicals provision Section 346 does not ask for this regarding a Hazardous Chemicals Register. Furthermore, this is impractical for a business to do for the following reasons:

1. No small to medium business (which makes up approximately 85% of businesses) would have a person qualified and skilled enough to go through all the products safety data sheets to outline and list which chemicals found in the product are hazardous.

2. There is an average of 250 chemical products in a small automotive repair business and it would be an administrative burden for the business.

3. This is no current legislative requirement to conduct this type of analysis per chemical product safety data sheet.

Safe Work Australia needs to understand the practicality, capability and limitations of small and medium enterprises. If such poor interpretations are made in code of practice and it is enforced by an Inspector, it will cripple a business as they would face infringement fines for red tape that drives no safety outcome. VACC recommends the removal of the sentence as the opening paragraph outlines the Work Health and Safety Regulations provision for Hazardous Chemical Register (section 364) clearly.

Page 12 Section 4.1VACC is of the opinion that under the subtitle of ‘Minimise the risk’, the dot point explaining ‘isolation’ is not a common solution example in the bulk of the spray painting industry. Often, isolated automated spray painting systems are present in large manufacturing processes. VACC recommends that the example/explanation is replaced with:

“Conducting all spray painting in an enclosed spray booth ensures that other workers in the spray painting area or building are not affected by the spray painting”

Page 13At the top of the page it lists all the types of spray booths that exist, however, it does not give a PCBU enough information on how they function. Furthermore, a spray booth is one of the most vital pieces of equipment in the interest of safety when spray painting. Additionally, if a PCBU was to read the code of practice they would look at the type of spray booths. VACC recommends that a diagram is inserted for each spray booth type where it depicts how it functions. These diagrams will assist new businesses with picking what booth is suitable, especially as there is an increase in foreign PCBUs (with English difficulties) opening businesses with very little idea of what is required.

Page 13 and 14 Figure 1, 2, 3, 4, 7 and 8VACC is of the opinion that figures 1, 2, 3, 4, 7 and 8 have incorrect personal protective equipment (PPE) requirements displayed for the spray painting of automotive doors and vehicle. The most common paint used in the automotive industry is two pack paint which contains iso-cyanates, and it can be assumed that the automotive spray painters in the figures are spray painting with two pack paint. From these figures it can be assumed that the PPE used in these diagrams are correct for use, however, it is incorrect. Below are the issues with the figures:

Figure 1 & 2- Automotive spray painters should not wear half mask canister respirators. The industry standard for respirators is either a full head covered positive air fed mask or positive air fed mask with goggles and hood for the head.

Figure 1 & 2- The spray painter has his eyes, face and hair exposed and is at risk due to over spray and fumes.

Figure 3, 4, 7 and 8- The positive air fed mask or disposable overalls do not cover his hair. Figure 3, 4. 7 and 8- The figures show that the air that feeds the mask comes from a fire


extinguisher looking cylinder. This is incorrect as the automotive industry does not provide air from cylinders. The automotive industry have air line outlets in the spray booth which are connected to the air compressor which feeds continuous air and will not run out unless the air compressor ceases to function.

VACC urges that the figures are correctly represented as this will mislead PCBUs and the authorities’ inspectors.

Page 16 Section 4.4VACC believes that spray painting with no booth is a rare occurrence and it is recommended that this section includes an example diagram of the setup for spray painting outside of spray booth. The diagram should depict the explanation of section 4.4. An example of such an application seen in industry is the application of spray on protective linings on the base of boats, refer to www.polyurea.com.au .

Page 17 Section 4.6VACC is of the opinion that an additional explanation is inserted to the sentence under the shaded box which outlines a workers duty for PPE. VACC strongly emphasizes that when conducting spray painting of any kind, PPE will always be required, regardless of the issues or other controls such as spray booths. VACC recommends that the following sentence is added:

“Workers must understand that PPE such as respirators, eye protection and protection clothing will always be required if conducting spray painting with hazardous chemicals, regardless of other controls that exist such as spray booths, ventilation systems or administrative controls.”

VACC stresses that the regulations and code of practice with the qualifier of ‘so far as reasonably able’ will give a worker an excuse not to wear PPE or the correct PPE, especially respirators. The automotive industry PCBUs find it difficult to enforce the PPE requirements as skill shortages make it hard to discipline and replace spray painters. The automotive industry PCBUs may supply all the controls necessary, however, the laws and authorities do not support and focus upon worker defiance.

Page 18The second dot point under the subtitle ‘Two part polyurethane paint’ requires the addition to the full length overalls to state “full length overalls with head hood”. The head hood ensures that the hair and neck area is fully covered to prevent exposure to paint.

Page 24 onwards Section 6 onwardsFrom page 21 it would appear that the code of practice finishes with spray painting and commences with powder coating, however, it appears on page 24 onwards and from section 6 onwards that the section crosses over together spray painting and powder coating. VACC recommends that this adjusted or titles outline the combination so readers do not conclude at section 5.


Based off VACC members, VACC believes this code of practice will not add any safety benefit compared with what is currently enforced in Victoria. VACC is concerned that this code of practice will confuse any industry that spray paints and would also confuse a PCBU who is trying to understand the requirements. VACC has assisted the automotive industry to understand the obligations under the occupational health and safety laws even before OHS laws existed. This code of practice could lead to a PCBU implementing an incorrect control and to then find out later from an inspector or from the VACC that it is not suitable.

VACC urges that this code of practice is made into guidance that is short and sharp, no different to the WorkSafe Victoria Solution for Spray Painting with Paints Containing Iso-Cyanates.

5) Abrasive BlastingComments due by Friday, 16 December 2011Comments: (Please include section/page numbers).

General Comment:

http://www.polyurea.com.au/


VACC believes that abrasive blasting should not be a code of practice, in comparison to the development of other codes of practice, abrasive blasting is not a specific provision in regulations, unlike plant, hazardous chemicals etc. VACC recommends that abrasive blasting is made into guidance. Page 6 Section 2VACC is of the opinion the whole section 2 Prohibited Substance would be better placed in the ‘How to identify the hazard’ section 3.1 on page 8. The current area at the front of the document does not logically fit well in the way it reads. The prohibited substances should be considered when identifying abrasive blasting hazards.

Page 8 Section 3VACC is concerned with the heading of section 3 as it is titled ‘Dust’. The intention of this code of practice is to address abrasive blasting, not dust. As per the risk management format of other codes of practice, section 3 title should be, “How to identify abrasive blasting hazards”. The current section only addresses the identifying of dust hazards.

Page 10 Section 4As per the comment above for page 8 section 3, the section should focus on controls for abrasive blasting, not dust only. VACC recommends that a further review is conducted of this code of practice and there is a need to focus on other hazards associated with abrasive blasting besides dust.

Page 13-14 Section 4.5VACC recommends that after the exclusion zones section a diagram should be install to demonstrate how it should be set up.

Page 17 Section 5Section 5 of the code of practice is titled ‘Particulate Matter’ which has the same issue as commented on page 8 section 3. VACC recommends that where possible the codes of practice should follow a similar format. VACC recommends that particulate matter is intergraded into a “How to identify abrasive blasting hazards’ section. Furthermore, a reader of this code of practice will become confused between ‘dust’ and ‘particulate matter’ as it can be perceived as the same thing, therefore, dust is classified as particulate matter.

Page 20 Section 6.5VACC is concerned with the first dot which states:

“High pressure hoses should be firmly secured at a distance of no more than three meters from the operator”.

This does not occur in industry, as there are water blasting equipment that is secured and safe at greater than three meters. Furthermore, this dot point and some other dot points in this section are vague as to the reason why that specific control is needed. It is recommended that the dots points are reviewed and made clear the reason for the control.

Page 22 Section 6.8VACC is of the opinion that an example diagram is inserted depicting a temporary enclosure setup as per the explanation in this section. As mentioned previously in this submission, a diagram showing what can be done will attract a reader to follow the code of practice.


VACC believes that this code of practice will not add any further safety benefits to the abrasive blasting process. Also the code of practice in its current process will confuse the reader as it does not present a logical flow of information and topics.

Currently in Victoria and Tasmania, abrasive blasting is not a legislative requirement and there are no major enforcement programs.

6) Welding and Allied ProcessesComments due by Friday, 16 December 2011Comments: (Please include section/page numbers).


General Comment:VACC has an issue with the title of this code of practice as it uses the words ‘allied processes’. A PCBU or worker would not understand what allied processes are from the title.

Although section 1.1 explains what ‘allied processes’ are, it is a concern to VACC that the code of practice fails to address ‘allied processes’ hazards and risk controls. The content of this code of practice is focused predominately on welding processes. The allied processes do not use in all circumstances the same controls as welding processes. For example, an allied process of metal cutting using an angle grinder will not require ventilation systems and welding personal protective equipment. VACC recommends that the code either has a section added for allied process risk controls or allied processes are removed and the code of practice is solely for welding processes.

Section 2VACC is again concerned with the inconsistency of formatting of the codes of practice as the title of “how to manage the risks” is different to the format of other codes of practice which would state, “How to identify welding and allied process hazards”.

In table 1, the row that states ‘Compressed and liquefied gas, compressed air’ and in the column of ‘Potential harm’, it is recommended that after the word ‘hearing’ the words ‘and physical’ should be added. Furthermore, in the row that states ‘Hazardous Chemicals’, and in the column of ‘Potential harm’, it uses the terms of ‘pickling and passivation’, these terms are unknown even to industry who conduct welding. VACC recommends the above editions are made and also do not use terms that are not defined or understood by even the industry that conduct welding.

Page 11 Section 3.2VACC is of the opinion that the reference at the bottom of page11, which direct further information on welding electrical safety, should not be placed in the text of the code of practice. It is recommended that it is removed and it should only remain as it is in Appendix B.

Page 14 Section 3.5In the listed (dot points) control measures, it states that flash back arrestors are tested at least every 12 months. VACC disagrees with this as flashback arrestors are not tested in industry as they expire 5 years from the commencement of use and often replaced. VACC and its members do not have knowledge of anyone who could or would test them.

Page 17 Section 3.8VACC is of the opinion that the reference at the bottom of page17, which direct further information on fume minimisation, should not be placed in the text of the code of practice. It is recommended that it is removed and it should only remain as it is in Appendix B.


This code of practice will not add additional costs or safety benefits of complying. Most of the VACC members who conduct minor welding processes are qualified and obtain the relevant equipment, personal protective equipment and usually depend on natural ventilation in workshops.

7) Safe Access in Tree Trimming and ArboricultureComments due by Friday, 16 December 2011Comments: (Please include section/page numbers).No Comment


8) Preventing and Managing Fatigue in the WorkplaceComments due by Friday, 16 December 2011Comments: (Please include section/page numbers).

General Comments:VACC has major concerns with the Preventing and Managing Fatigue in the Workplace Code of Practice. Firstly, VACC was advised by ACCI that at a past SIG-OHS meeting a decision was made


that ‘fatigue’ would be guidance as opposed to a code of practice. VACC is disappointed that decisions made at a national OHS tripartite meeting are not upheld and no explanation is given by Safe Work Australia as to why it is now presented for public comment as a code of practice. VACC urges Safe Work Australia to change this code of practice into sensible practical guidance that will not cause industrial conflicts in the workplace.

Another related issue as to why this should not be a code of practice is that no other state has a fatigue code of practice under WHS, there is no reason why fatigue should be a code of practice. Also breach of this code could lead to actions of “adverse action” and the employer would have to prove that the employee was not terminated because the employee was fatigued at work.

VACC has concerns with the application of the code of practice. Most of the code of practice is based upon a static workplace and does not consider mobile and unsupervised workers. VACC recommends that the fatigue code should have flexibility as recommendations in the code would not apply to varied work arrangements that exist.

The language and scope of this code is based on the PCBU duty to workers. Fatigue is an issue that also heavily depends upon a workers lifestyle factors and a workers duty to themselves. VACC proposes that the language and scope is extended to workers.

This code of practice is structured in a risk management format. VACC is of the opinion that addressing ‘fatigue’ on its own doesn’t fit well in the risk management structure. Fatigue on it is own is not specifically a hazard. For example, I am mentally fatigued writing this submission for this code of practice, however, there is no risk to my health and safety. This code of practice should acknowledge that ‘fatigue’ on its own is not a hazard, it should outline that ‘fatigue’ is a contributing factor to another hazard which can increase the risk. It is recommended that the risk management structure is removed and the code of practice is made into an information guide. Furthermore, this document must differentiate between safety critical roles and general fatigue that is not safety critical.

Page 4 Section 1In the introduction it explains what fatigue is and outlines work-related fatigue factors and lifestyle factors. Some of the factors listed for both work and lifestyle are vague and need to be further explained. The following dots points are list and should be expanded or added:

working time- This needs to be, ‘excessive, unreasonable and prolonged work time’ environmental conditions- This needs to be, ‘excessive or unreasonable environmental

conditions’ the organisation’s culture- This needs to be further explained Drugs and alcohol- This needs to be added to the lifestyle factors list

At the bottom of the page, the code of practice explains and lists how you can tell if someone is fatigued. VACC believes that this list is too subjective and there are no measureables. In many workplace situations this same list of symptoms could just as easily assume that the person is under the influence of drugs or alcohol.

Page 5 Section 1.1At the top of the page, under the title of sleep and fatigue, the opening sentence states:

“Sleep is the only effective long term strategy to prevent and manage fatigue”

If this statement is correct and it is essentially the solution to the title of this code of practice, then VACC challenges why a 26 page code of practice is needed. VACC comprehends that there are situations where people work over the standard 38 hour weeks, however, awards and workplace agreements provide for rest periods, meal breaks, crib time and rest breaks when a person is required to work overtime.

Page 6 Section 1.4In this section it sets out a step by step process to prevent and manage fatigue, which is essentially the risk management structure. As outlined above in general comments, the risk management process is not necessary a proper fit for fatigue. The first dot point states to, “ identify hazards that can contribute to fatigue”, however, those hazards can be associated with any other hazard, for example, manual tasks, using plant, working with hazardous chemicals, working in a confined space etc. As recommended previously, remove the risk management structure and this document needs to be guidance which provides information. There are many other hazard based codes of practice that use risk management and it is preferred that fatigue is added as contributing factor to those hazards.


Page 7 Section 1.4Under the consulting workers section, there is a list of dot points on what must be consulted with workers and health and safety representatives. VACC is concerned with the second dot point as many organisations will find it difficult to check how fatigue is currently managed. Organisations that conduct road transport can check how fatigue is managed as there are legislative road safety laws that outline the fatigue management systems due to long-haul driving. But, static workplace organisations will find it difficult as there is no measurable other than work hours set and the subjective feedback given by workers.

Section 2.1VACC is most concerned with explanation under the title of “Mental and physical demands work”. The explanation states that ‘performing repetitious or monotonous work’ increases the risk of fatigue. There are many jobs where this description applies and those workers are well aware of the nature of the job. These types of explanations in a code of practice can lead to an industrial dispute.

Page 9 Section 2.1The last dot point under the title of ‘Individual and lifestyle factors’ states,

“extended travel to home residences, for example, inter-state travel or travel overseas”

However, underneath this dot point it refers to the fatigue hazard checklist in Appendix A which is workplace based, not lifestyle based which is out of the PCBUs control. Also the contradiction is that in the Appendix A checklist it states that,

“ a person needing to travel more than one hour to get to their job” (unshaded area)

Travelling over an hour to work in comparison to inter-state and overseas travel differs immensely. Furthermore, the checklist is a workplace tool and outlines that if ‘yes’ is answered to any three of the unshaded areas then the PCBU should assess fatigue and implement controls. It is improper for a PCBU to make allowances because a person chooses to live over an hour travel from work. VACC recommends the dot point on page 9 removes the words, ‘for example, inter-state travel or travel overseas’, furthermore, in Appendix A, the reference to travelling more than an hour to a job is removed. The time to travel to a job is dependent on many factors such as traffic, the route the driver takes and time of the day travelled. VACC believes that the worker needs to take action for their own health and safety if lifestyle factors attribute to their fatigue, not the PCBU.

Page 9 Section 2.2In the first paragraph, first dot point it states,

“where, which and how many workers (including contractors and subcontractors) are likely to be at risk of becoming fatigued”.

VACC believes this is incorrect as the risk for fatigue is dependent upon the task and other hazard being undertaken. VACC recommends again that the risk management process is not used in this document.

The second dot point under the sentence of ‘risk assessment methods can include’, states,

“check whether workers have had accidents (including transport) travelling home or have experienced work-related fatigue”.

The problem with this sentence is that a PCBU will not be able to determine if fatigue was the factor that caused the accident to occur.

Page 10 and 11 Section 2.3Under the ‘Work scheduling and planning’ title, the fourth dot point recommends the inclusion of rest periods in the work schedule for napping and sleeping. In reality in industry the only industry that may has napping and sleeping is the transport industry. This code of practice does not clarify the circumstances when certain solutions are practicable.

Under the title of ‘Breaks during working time’, the first dot point/sentence directs that a PCBU ensures that workers have regular breaks so they can rest, eat and rehydrate. VACC disagrees with this sentence as a manager or supervisor cannot force a worker to rest, eat and rehydrate. VACC again stresses that awards and agreements provide for rest periods and meal breaks, it is not a


PCBUs duty to babysit their workers. It is recommended that this sentence is removed.

VACC identifies that the sections that provide solutions around work scheduling and planning are not feasible for most businesses. Some of the issues that have been identified are:

There isn’t flexibility in the awards for employers to make part-time and casuals cover for additional hours.

Customer service workers such as drive way attendants, console operators, tow truck drivers and road side service workers need to be available to the community outside standard hours.

Not feasible in small business operations to not give day shift workers overtime to night shift workers when a day shift worker doesn’t come to work that day, for example, if the service station day shift console operator fails to show, they down shut down the service station until another worker can be found.

VACC believes that the code of practice needs to reflect the realities of industry and keep the solutions and guidance practical.

Page 12 Section 2.3The dot points under the title of ‘Leave Management’ are a concern to the VACC. The role the PCBU/employer has with leave management is limited by the Fair Work Act. The recommendations under leave management are either not realistic or clash with a workers employment entitlements. VACC recommends the removal of this section as a PCBU/employer would know this information and would not refer to a fatigue document to attain this knowledge.

Page 13 Section 2.3VACC is concerned with the fourth sentence under ‘d) Organisational factors’ as it advises a PCBU to consider measures to deal with risks where workers drive home tired. This sentence is not a solution and doesn’t consider how an organisation would do this. Furthermore, most workers if surveyed would say they are tired after work. If a small business PCBU identified they had tired workers, they wouldn’t have the budget to taxi or bus their workers to and from work. Even if a large organisation identifies tired workers, the large organisation couldn’t do much especially due to the quantity of workers they have.

Under the heading of ‘e) Individual and lifestyle factors’, VACC is concerned that this section is directed to a PCBU. Again VACC would like to stress that a PCBU has no control of a workers lifestyle or social life. Also in this section it recommends the development of fitness for work policy and health and fitness programs. Fitness for work policies will only lead to industrial disputes and health and fitness programs are not a solution to fatigue, instead, a worker who is fatigued could be targeted by the fitness for work policies and lose their job due to not being capable to fulfil the job work capacity. Another argument that can be put forward is that exercise could increase the fatigue as well. VACC highly recommends that this section is changed to focus on the workers and also remove the fitness for work policy and health programs reference.

Page 17 Appendix AVACC disapproves of the fatigue hazard checklist in Appendix A which is targeted toward PCBU, management, OHS managers, supervisors and health and safety representatives. In the current state this fatigue hazard checklist is in, it could lead to workplace disputes due to the ease of answering the three unshaded ‘yes’ and the PCBU is forced to address the subjective issues. The issues with the checklist are:

In the first questions examples, it places ‘typing’ as a physically demanding task that is conducted for long periods. Typing is placed beside other tasks such as bricklaying, moving bags of cement or felling trees. VACC recommends the removal of typing as it is not a physically demanding task that can be listed beside those other tasks.

As noted above in feedback on page 9 section 2.1, where a worker chooses to live should not be the responsibility of the PCBU.

VACC recommends the removal of the checklists requirement that fatigue matters should be addresses if three of the unshaded areas are answered with a ‘yes’. Furthermore, task of typing should be removed and the travel of more than one hour to a job should be removed.

Pages 18 to 22 Appendix BThe risk assessment charts in Appendix B are not useful to an organisation as they are confusing to look at and as discussed in this submission, the risk management process is not an adequate fit to fatigue. VACC recommends the removal of the risk assessment charts in Appendix B.



VACC believes this document, if remaining as a code of practice will not improve safety. This impractical and misguiding document will cause industrial conflicts in the workplace.

If this code of practice is not changed back to guidance and corrections are not made, there will be increases in unfair dismissals and likely financial implications for organisations needing to address the industrial disputes. Additionally, small to medium enterprises will need to implement processes and gain external assistance at a cost, to ensure the processes are similar to larger organisations.

9) Preventing and Responding to Workplace BullyingComments due by Friday, 16 December 2011Comments: (Please include section/page numbers).

General Comments:The VACC has concerns with the ‘Preventing and Responding to Workplace Bullying’ document being a code of practice. VACC was informed by ACCI that in past SIG meetings it was decided that ‘Preventing and Responding to Workplace Bullying’ would be guidance, not a code of practice. VACC is disappointed that a decision made at an official OHS tripartite meeting is overturned without explanation. VACC recommends that the bullying code of practice is made into guidance.

This bullying code of practice has a range of issues which can cause more harm in a workplace than good. Firstly, VACC believes this should not be a code of practice as it not only crosses over into the industrial relations jurisdictions but also it is at odds with procedural fairness.

Another general issue with this code of practice is that it is over prescriptive and the recommendations are only suited to large organisations. Small to medium enterprises will not be able to implement such recommendations. VACC proposes practical and reasonable guidance that can be utilised by any business will achieve an increase in safety outcomes, as opposed to an unrealistic code of practice that will not be used and will not be supported by the industry associations.

VACC is of the opinion that a topic or hazard should only be made into a code of practice if it is specially noted in the Work Health and Safety (WHS) Act or Regulations. Although VACC acknowledges ‘health’ also means psychological health, as defined in the WHS Act, bullying is not specifically mentioned.

A common issue seen across this code of practice is that it’s all directed at the PCBU. This bullying code also inadequately fails to provide information directed at workers, especially those who are in need of help or to provide warning to those that are bullying. In VACC experiences with dealing with member bullying claims, most bullying claims are seen between co-workers, this same trend has also been reflected in other industries as well.

Another issue which is missing from this code of practice and most often forgotten in the dealings of bullying claims is the affect on the person who is alleged to have been bullied. VACC has dealt with many cases where an employee has alleged that he/she was bullied by the manager, then after an extensive investigation, interviews and sometimes OHS regulator investigations, it was found that it was either not bullying or the person withdraws their claim. The person who was the alleged bully is then left in a position where other workers around him/her treat them differently and that person is psychologically affected. There is no consideration in this code of practice or in other bullying guidance which addresses the after affects of an investigation.

Page 4 Section 1.2Under the title of ‘Direct or indirect bullying’, VACC is of the opinion that ‘web based social media’ needs to be added to the modes of bullying. Although social media such as Facebook is sometimes out of the extent the PCBU can monitor, this code should place a focus on all workers to acknowledge that social media bullying is included. Social media bullying must be included as it is a growing trend in schools and workplaces.

Page 5 Section 1.2VACC believes that some of the indirect bullying examples are inappropriate. Most of the example dot points need to be deemed as ‘unreasonable’. Furthermore, some of the indirect examples are rarely


proven to be repeated. VACC recommends the word ‘unreasonable’ needs to be added to the dot points.

Under the title of ‘Intentional or unintentional bullying’, it states that a manager or supervisor management style that seems strict is bullying. This statement is improper as this statement in a code of practice will give any worker who has a strict boss a claim to state they are being bullied. A management style, although strict, is most of the time not bullying as it doesn’t fit the definition and usually is a part of a manager’s character trait that has never changed toward any one person. VACC proposes the removal of the term ‘management style’.

Page 6 Section 1.3VACC is of the opinion that the examples of reasonable management action are not limited to the dot point list provided on page 6 section 1.3. For example, the reasonable management actions that are not listed are:

Re-training of a worker/s Providing a warning (verbal or written) Demotion or redeployment of a worker due to not being capable in a position Transfer of worker’s employment Suspension or stand-down of worker’s employment Reclassification of the worker’s employment position

VACC also notes an issue with two of the dot points on page 6. The fifth dot point outlines that deciding not to promote a worker following a fair and ‘documented process’. There is no requirement to document the process for not selecting a worker for a promotion so long as the process was conducted fairly. VACC recommends the words ‘and documented process’ should be removed.

The sixth dot point is also incorrect as informing a worker about unsatisfactory work performance doesn’t always have to be in accordance with policies or agreements. There are situations that are not covered by a policy or agreement but a manager needs to address the worker. VACC recommends the removal of the words, ‘and in accordance with any workplace policies or agreements’.

The second case study in the box at the bottom of page 6 is a poor representation of unreasonable management action that is bullying. The problems with the case study is that:

High staff turnover in some industries is a fact and it doesn’t imply that bullying exists. It is a rare occurrence that a worker requests a performance review. Usually performance

reviews are called on by the manager. It is easy to interpret from this case study that John is not capable for the job.

VACC recommends this example is changed to be a bit more realistic and doesn’t lead the reader to think of other reasons.

Page 7 Section 1.4Under the title of ‘What is involved in preventing workplace bullying?’ it outlines a step by step process which is the risk management process. VACC disagrees with the use of the risk management process to address bullying in the workplace. Regarding identification and assessing of bullying risk factors, it can be very subjective and bullying factors can vastly differ, which makes the risk management process dysfunctional to use. This is similar with control factors to bullying as bullying controls do not fit well to the traditional hierarchy of controls principals which are physical hazards orientated. Most times, the way bullying is addressed is through the following:

Discipline or terminating the bully (once proven) Training of management and workers on bullying Implementing a bullying policy and investigation process Mediation Reallocation of workers

Most, if not all of the above controls are administrative in nature, furthermore, depending on the situation, resolutions will differ based on the circumstances of the investigation. For example, sometimes a worker can be terminated, other times there is no control as nothing can be proven.

VACC disapproves of the consulting workers section. It outlines that the PCBU ‘must’ consult with workers and health & safety representatives at each step of the risk management process. The problem with this in reality is that when dealing with a bullying claim it is most times kept private and


confidential to protect the parties involved. VACC agrees that consultation should occur when developing and implementing policy and procedures, but it is recommended that the risk management process is removed as in the case of consultation it does not apply well when dealing with a bullying claim.

Page 9 Section 2In the opening sentence at the top of page 9, it states,

“Identifying hazards involves finding all of the things and situations that would potentially contribute to bullying in the workplace...”

This is impossible for a PCBU to do as there are many situations that could cause a bullying situation. For example, if two co-workers have a personal matter (not work related) and one of the workers starts to bully the other over the personal matter, how is the PCBU suppose to predict that the scenario. This again reiterates the VACC opinion to remove the risk management process.

VACC is disappointed with the third paragraph after the first set of dot points on page 9, as it places all blame on management failures and doesn’t highlight a workers issues. VACC advocates that workers need to be highlighted in this section too.

The second paragraph under the ‘Organisational culture’ subtitle is not reasonable. It is not reasonable for a PCBU/management to have oversight of all groups, friendship circles or cliques that exist in the organisation. The law or code of practice can’t direct how far management go with worker groups with common interests that may not include others persons that do not have the same common interest. If management were to take action on common interest groups it would appear to be discriminatory but also make management look like a bully or dictator. VACC believes this paragraph must be removed.

VACC is of the opinion that the whole section on ‘leadership styles’ must be removed. A code or any other government document should not be telling a PCBU/management what leadership style is or is not appropriate. Leadership style will differ based on a person’s character, experiences, industry pressures and level of responsibility. Furthermore, based on statistics and recent media coverage on bullying issues in the government sectors (ratio of 7:1 bullying claims in government compared to private sector), it is recommended that government are not best at advising what leadership styles are or are not acceptable.

Page 11 to 14 Section 3VACC agrees with some of the ways to prevent and respond to bullying in section 3. The only further recommendation is that template documents should be placed in the appendix so businesses have a starting point. Below are three templates that can be supplied in the appendix:

Bullying policy Complaints Procedure Resolution Procedure

Page 16 Section 4.3VACC disagrees with the informal resolution process as a PCBU must respond to all bullying complaints as a duty care to the worker. It will be unrealistic and difficult for a manager to keep a distance and continuously monitor reprisal, while the worker who chooses to speak directly to a person engaging in bullying behaviour.

Furthermore, to recommend that the informal approach shouldn’t include an investigation could lead to allegations that the PCBU did not appropriately respond to a bullying complaint.

Page 17 Section 4.4VACC opposes the inclusion of the title and shaded box under ‘Principles of natural justice’ in a code practice. The issues associated with this is:

1. The principles of natural justice and the steps below in the section, is not a one size fits all for business. Small to medium enterprises are not in a position or have the expertise in following this.

2. The content of principles of natural justice in the shaded box is not a reference of the WHS Act or Regulations. It should be removed as the code of practice is a translation of the WHS Act or Regulations, not another reference outside of WHS law.


Page 18 Section 4.4Under the title of ‘Step 4- Investigation outcomes’, the VACC disapproves of the dot point which states,

“dismissal (this should only occur in the most severe cases or if it is a repeated case of bullying, and is subject to industrial laws)”

This dot point within a code of practice can be used in an unfair dismal. VACC recommends the bracketed text in this dot point is removed as it has no justification. Impacts: Do you anticipate any potential costs or safety benefits of complying with this code that are different to current requirements in your jurisdiction? If so what are they?

VACC believes this bullying document, if remaining as a code of practice will not improve safety. This impractical and misguiding document will cause an increase in bullying claims where the allegations are not bullying. This will have a similar affect to the increase in workers compensation stress claims when the Victorian government released the public sector focused document called Stresswise.

If this code of practice is not changed back to guidance and corrections are not made, there will be increases in unfair dismissals and likely financial implications for organisations needing to address the industrial issues. Additionally, small to medium enterprises will need to implement processes and gain external assistance at a cost, to ensure the processes are similar to larger organisations.

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