Prevention and management of workplace bullying

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Safe Work Australia on the

Prevention and management of workplace bullying 11 July 2013

1. Executive Summary

1

2. Comments on the Draft Code of Practice

3

2.1

The definition of bullying in the Code

3

2.2

Criteria for Codes of Practice

6

2.3

Language of the draft Code

7

2.4

Concurrent duty holders

7

2.5

Integration with health and safety management

8

3. Comments on the Regulatory Impact Statement (RIS)

9

3.1

Objectives of the proposed reform

9

3.2

Costs of a code of practice

10

3.3

Bullying policies and consultation

10

3.4

Information and training

10

3.5

Responding, record keeping and reporting

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4. Other comments – the Fair Work Act

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5. Comments on “Workplace bullying – a worker’s guide

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6. Conclusion and recommendations

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Specific Comments on Draft Code of Practice

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HIA : Housing Industry Association 79 Constitution Avenue Campbell ACT 2612 Contact: Belinda Josey Executive Director – OH&S Policy Housing Industry Association 79 Constitution Avenue Campbell ACT 2612 Phone: 02 6245 1356 Email: [email protected]

HIA is the leading industry association in the Australian residential building sector, supporting the businesses and interests of over 43,000 builders, contractors, manufacturers, suppliers, building professionals and business partners.

1. Executive Summary HIA welcomes the opportunity to make submissions on the draft Code of Practice: Preventing and Responding to Workplace Bullying (the draft Code), the associated Regulatory Impact Statement (RIS), and the draft “Workplace Bullying – a Worker’s Guide” (the Workers’ Guide). HIA represents an industry characterised by small businesses that employ fewer than 5 direct employees, and where independent contractors undertake work of short durations for a number of clients concurrently. This means that a builder will engage a number of different contractors on a number of different sites, and a contractor will work for a number of different builders on a number of different sites. This presents a unique set of circumstances in which codes of practice must be implemented. HIA recognises the dangers associated with bullying and the existence of bullying in some workplaces. However, HIA believes that bullying should not be approached in isolation from other workplace hazards. HIA does not support the imposition of a code of practice and does not consider it the most appropriate way to address the issue. There are several reasons why HIA does not support the draft Code of Practice: 1. The code is impractical for small businesses in the residential construction industry Put simply, HIA does not see any way that a small business employer can comply with the draft Code as it is currently drafted. It presents duties that are not easily understood and responsibilities that are almost impossible to interpret. The definition and examples of bullying create a construct whereby every interaction at the workplace may be considered bullying, or have the potential for bullying. The employer must then determine whether this creates a work health and safety risk, and if further action prescribed by the draft Code is warranted. Understanding the subtleties of workplace and human interaction and the potential risks requires sophisticated psychological competencies and analysis on a daily basis that are not available to most people. Small business simply will not be able to comply. 2. The draft code assumes a traditional employer-employee relationship that does not fit with a subcontracting workforce The draft code appears to be drafted from the point of view of a traditional employment relationship, under which the employer has actual control over and responsibility for the activities and actions of its employees. Yet the majority of onsite work in the housing industry is undertaken by independent contractors, all of whom are persons undertaking a businesses or undertaking (PCBUs) in their own right. They do not work under the control and direction of the builder/ principal contractor but are engaged for the completion of a set task. Further a construction site is frequently attended by delivery drivers, consultants and union officials who are not direct employees of the builder/principal contractor.

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3. The concept of “bullying” is too broadly defined The broad construct of “bullying” places an unreasonable burden on PCBUs to understand and analyse interpersonal relationships and interactions, monitor coping skills, and make psychological assessments involving cognitive and emotional functioning of individuals, among other things, for which they are unlikely to be either qualified or competent. The often subtle nature of bullying and the potential for it to arise, according to the draft Code, out of any workplace interaction requires PCBUs to understand the nuances of human behaviour or risk non-compliance with the draft Code. Modern workplaces are dynamic involving a broad mix of firms and individuals, each with different skills, experience, backgrounds and in some cases, culture. Interpersonal conflict between management and staff and amongst co-workers may eventuate. Yet not all interpersonal conflict will be bullying. To assume so, trivialises genuine bullying when it occurs. The draft Code includes an expansive list of behaviour that might be considered “bullying”. This definition goes further than what is reasonable. For example, people may need to be able to freely criticise co-workers, even if it hurts their feelings, in order to remedy bad or mediocre work performance. The use of “constructive criticism” is an everyday tool with which to offer reasoned opinions about the work of colleagues, peers and subordinates. The draft Code, however, infers that constructive criticism, where it is unreasonable, would be a form of bullying. This creates a daily challenge to quantify and remain within what is “reasonable”. 4. The draft code includes an expansive range of behaviour that might be considered “bullying”. In HIA’s view this goes further than what is reasonable, as the draft Code implies that almost all behaviours create a risk of bullying. Codifying what is and is not bullying in the way outlined in the draft Code means that it will be impossible for a PCBU to comply with draft Code, and that Principal Contractors in housing construction will not be able to fulfil their obligations under the regulations. More so, the test for bullying is firstly one of what may be unreasonable, followed by a test that action or behaviour results in a health and safety risk, a further challenge of competency for small business. 5. The content of the draft Code fails to meet elements of Safe Work Australia’s own criteria for determining suitability for a Code of Practice (COP) A code of practice on bullying is not necessary for legal compliance as it can be managed within existing health and safety frameworks, and a code is not the only effective method for elevating the importance of the issue. The evolving state of knowledge about bullying and the lack of well-established controls to manage it also demonstrate that the draft Code does not meet the criteria.

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6. The notion of a Code for bullying is unfair, and creates an almost “strict liability” regime Approved codes of practice can be submitted in a court as evidence of what is known about a hazard or risk and how to control it. This gives codes of practice such as this a quasi-regulatory status. Regulators, inspectors and others in turn take the view that failure to comply with a code of practice represents a failure to comply with the WHS legislation. Accordingly, the draft Code’s assumption that all interactions have the potential for bullying is very concerning. 7. The RIS underestimates the costs of compliance HIA considers that the costs of compliance with the draft Code are significantly underestimated by the RIS, and that the RIS has used flawed methodology in arriving at these costs. The full impact on businesses of compliance, including opportunity costs, are not considered by the RIS, and the time allocations assumed are incorrect unless the PCBU has specific expertise. 8. Bullying and harassment material should be published as guidance, not a Code of Practice. HIA believes that model guidance material supported by education, awareness and training will give the best safety outcomes, and that a code of practice is not justified. Guidelines that provide practical methods of addressing bullying as part of health and safety management will impose significantly less cost and achieve better safety outcomes. However, HIA believes that the Workers’ Guide must be extensively reviewed. In its current form, it creates unrealistic expectations of what a PCBU can practically do to address bullying, leading to increased tensions between workers, employers and unions. Further, the Workers’ Guide goes beyond what is required by the WHS legislation and the draft Code, and should be amended to reflect these requirements. HIA strongly recommends that the methods for compliance detailed in the draft Code be thoroughly ‘road tested’ with representatives from a range of businesses. A discussion or pilot that assesses the draft Code against real examples and scenarios will assist Safe Work Australia to clarify what might be reasonably practicable as well as identifying other methods to manage bullying in the workplace. HIA considers that such testing should take place in addition to the public consultation on the draft Code. HIA’s specific comments on the draft Code are detailed at Appendix A.

2. Comments on the Draft Code of Practice HIA does not support the draft Code in its current form, and recommends that it be extensively revised and piloted as a guideline.

2.1

The definition of bullying in the Code

HIA is concerned with the concept of workplace bullying expressed in the draft Code, and questions whether in fact any small business duty holder will be able to comply with. The draft Code assumes that almost all workplace interactions could be bullying in nature or have the potential for bullying. It also assumes that all bullying or potential bullying creates a -3-

work health and safety risk, and therefore action must be taken by a PCBU to minimise this risk. Unfortunately, the concepts and examples of bullying in the draft Code are so extensive as to render all interactions a risk to health and safety. It also places an unrealistic expectation on PCBUs to be able to determine whether any minor or subtle activity, intentional or not, is bullying and whether it creates a risk to health and safety. According to the Code, workplace bullying has four components: the behaviour must be repeated; it must be unreasonable; it must create a risk to health and safety; and it may be intentional or unintentional1. Specifically, the draft Code defines “Workplace bullying” as repeated and unreasonable behaviour directed towards a worker or a 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 regard for the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening. Risk is the possibility that harm (death, injury or illness) might occur when exposed to a hazard. Expansive examples of behaviour, whether intentional or unintentional, that may be considered to be workplace bullying are provided including :  abusive, insulting or offensive language or comments  unjustified criticism or complaints  deliberately excluding someone from workplace activities  withholding information that is vital for effective work performance  setting unreasonable timelines or constantly changing deadlines  setting tasks that are unreasonably below or beyond a person’s skill level  denying access to information, supervision, consultation or resources such that it has a detriment to the worker  spreading misinformation or malicious rumours  deliberately changing work arrangements, such as rosters and leave, to deliberately inconvenience a particular worker or workers  excessive scrutiny at work. The expansive list of examples of behaviour that may be considered to be bullying are likely to become a de facto criteria for identifying bullying. However, as noted in the House of Representatives Committee report2, bullying can be very subtle, and it can be extremely difficult for a person to identify bullying, yet the Code requires PCBUs to understand these nuances and make that judgment correctly, or be presumed to be non-compliant. HIA considers that this in an unreasonable expectation that small business workplaces will not be able to meet

1 2

Draft Code of Practice: Prevention and Management of Workplace Bullying , page 5. Workplace Bullying: We just want it to stop, page 2, para. 1.4

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While the draft Code requires the behaviour to be repeated, it also states that ‘a single incident … should not be ignored’3. This means that any behaviour listed needs to be investigated by the PCBU, to see if it has the components above. In terms of behaviour being ‘unreasonable’, the draft Code goes beyond any ‘reasonable person test’. Bullying is a complex behaviour, and a very subjective experience. What one person considers to be bullying, due to their personal experiences, culture or background, may be considered reasonable by a different person (in “the circumstances”). While actions and behaviour may fit cleanly into a reasonable or unreasonable category, the grey areas in between create an unreasonable compliance risk for small business. The draft Code provides no guidance to PCBUs on how to determine if a certain behaviour is bullying, and if it is a risk to health and safety. This places an unrealistic expectation on PCBUs to have the competencies required to interpret the nuances of each situation, which requires individuals with specific skill sets in interpersonal relationships and interactions, human behaviour, coping thresholds and other psychological competencies. In HIA’s view, this is consistent with the fact there should be no standard or formulaic approach to bullying. HIA is also very concerned by the qualification that bullying behaviour may be ‘intentional or unintentional’. By removing intent, this creates almost a strict liability regime that depends on a subjective experience, even though the person may not have known what they were actually doing. This places further responsibilities on the PBCU to make the connection between an activity at the workplace, intentional or otherwise, and a risk to health and safety. HIA considers that in regard to psychological behaviour, intent is very important. For example, a worker unwittingly passing on incorrect information or misinformation more than once presumably places the PCBU in breach of the draft Code - automatically. The behaviour is listed in the draft Code, it is unintentional and it is repeated. This leaves the PCBU to determine whether it is unreasonable, and whether it presents a risk to health and safety, with limited guidance from the draft Code and without psychological assessment capabilities. HIA appreciates the difficulties of defining bullying, and argues that codifying what is and is not bullying is counter-productive and undermines and delegitimises the seriousness of actual bullying. By attempting to articulate the subtleties of bullying, the code can only ever be so general as to capture all behaviour. Compounding these difficulties is the fact that if a PCBU decides, with the best of their ability that a particular behaviour is not bullying, any worker can seek redress through the Fair Work Commission. This places further expectations on the PCBU to have the ability to judge minor and subtle interactions in the workplace without the specific skills to do so. The draft Code gives little guidance on conflict, aside from a brief mention and caution that it could become bullying4. This is not sufficient for a PCBU to be able to effectively manage their business with diverse individuals while complying with the draft Code. 3

Draft Code, page 5.

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HIA agrees that not all conflict in the workplace amounts to bullying. However, the draft Code places an unrealistic expectation on PCBUs to have the skills to determine whether a particular disagreement may escalate to bullying, with the further expectation that, lacking such skills, a PCBU must manage all conflict to prevent it from becoming bullying. Such a response could be construed as excessive scrutiny, one of the behaviours listed on page 5 as bullying. Workplaces are dynamic, with business and individuals of mixed backgrounds, experiences, cultures and points of view. Interpersonal conflict may sometimes result, and it is incorrect to assume that this always occurs within a framework of bullying or potential bullying. However, by removing intent from the definition of bullying, all interpersonal conflict has to be treated as though it is bullying. Interpersonal conflict needs to be addressed in the draft Code alongside workplace conflict. The broad definition and parameters of bullying mean that not only conflict during a work task has the potential for bullying, but all interactions at the workplace. If PCBUs are expected to comply with the Code, guidance on this matter must be given. To illustrate, a group of workers play cards during their lunch break, and every day for a week another worker asks to join them. Each time the players say no, because the worker is not well-liked or not very good at the game, but they hesitate to say this so as not to offend the worker. In this situation, the worker could report being bullied, because a group of workers is repeatedly, and in the worker’s mind unreasonably, excluding them from a workplace activity . This is an example of interpersonal conflict rather than bullying, despite meeting the criteria for bullying (notwithstanding the question of presenting a health and safety risk, depending on the worker’s state of mind). This example also highlights the complexity of human behaviour which the draft Code expects all PCBUs to be able to navigate.

2.2

Criteria for Codes of Practice

HIA submits that the draft Code should not be progressed as an approved code of practice, as it does not meet the criteria that SWA has set out5. These criteria are: 1. That guidance is a necessary part of enabling compliance with the duties contained in the WHS Act and/or Regulations. A code of practice on bullying is not necessary to enable compliance with the duties of the WHS legislation. Managing the hazards and risks of bullying is implicit in the duty to ensure the health and safety of workers and others6. Both the draft Code and the RIS advocate addressing bullying through a risk management approach similar to other workplace hazards7. This approach is detailed in the existing How to Manage Work Health and Safety Risks Code of Practice, and does not require a specific code in order to comply with the WHS legislation. 2. There is clear evidence of a significant risk or widespread work health and safety problem where evidentiary status of a code will elevate the importance of the issue. 4

Draft Code, page 7. SWA Codes of Practice and Guidance Material Information Sheet. 6 Model Work Health and Safety Act, ss 19, 28, 29. 7 Consultation Regulation Impact Statement for the Draft Model Code of Practice: Preventing and Responding to Workplace Bullying, page 18. 5

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While HIA understands the dangers of workplace bullying, a code of practice is a heavyhanded way of highlighting its importance, particularly given that the benefits of implementing a code of practice cannot be quantified. Other methods, such as education, training and awareness, will elevate the importance of the issue without the need for a code of practice. Indeed, the RIS notes that guidance material on bullying is very frequently downloaded from work health and safety authority websites8, which indicates that this material is being used, or at least referenced, extensively. The RIS also notes that regulatory activity aimed at education and raising awareness also increases demand for these resources9, showing that such campaigns are effective in highlighting the importance of the issue. 3. There are certain preferred or recommended methods to be used to achieve compliance. The draft Code also doesn’t meet the criteria that preferred or recommended methods be used. The RIS states that “different views on defining bullying and managing risks and continuing research in this area”10, indicating that there are no methods than be considered ‘preferred’ or ‘recommended’. 4. The information on the hazard, risks and control measures is well-established and reflects the state of knowledge without any gaps. The RIS notes that there is not yet a standardised body of knowledge on preventing and managing bullying, that there are no well-established control mechanisms, and that no single set of control measures can be used in all circumstances11.

2.3

Language of the draft Code

The language used in the Code is overly complicated and legalistic, and not easily readable by a person without specialist regulatory knowledge. Guidance material should be written in plain English so that it is easily read and understood by those who are required to comply with it. The complex language of the draft Code will be a barrier to acceptance and implementation by PCBUs, limiting the potential for improved safety outcomes. The WHS legislation is predicated on the reducing risk ‘so far as reasonably practicable’. The draft Code does not mention this concept until page 7. HIA submits that the concept of ‘so far as reasonably practicable’ needs much greater emphasis in the draft Code. The tone of the draft Code currently implies that all the recommendations can and should be followed and implemented, without consideration of what is reasonably practicable, or providing clear alternatives that may be more practical in different scenarios.

2.4

Concurrent duty holders

Workplaces in the residential construction industry typically have a number of different independent contractors working at the same time. The draft Code does not provide any guidance for concurrent duty holders in preventing or managing bullying. 8

RIS, page 7. Ibid., page 11. 10 Ibid., page 17. 11 Ibid., pages i, 17. 9

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A brief mention is made of the need for policies and procedures to be consistent, and an agreed approach to dealing with reports of bullying12. Codes of practice must provide duty-holders with ways to comply as opposed to re-stating the regulations. It is HIA’s submission that because of the drafting of the duties provisions in the WHS Act and the absence of “control” in determining who holds a duty, it would be impractical to codify the obligations of concurrent duty holders insofar as managing the risks of bullying on a construction worksite. Often, a Principal Contractor as defined by the WHS regulations13 has additional and concurrent duties to those of a PCBU. A Principal Contractor must ensure that the PCBUs they engage manage health and safety appropriately. In the context of bullying as constructed in the draft Code, this means that the Principal Contractor must be satisfied that a PCBU they engage on a contract basis has the necessary psychological assessment skills and competencies to comply with the draft Code. This is an unreasonable expectation.

2.5

Integration with health and safety management

Both the Code and the RIS advocate addressing bullying through a risk management approach similar to other workplace hazards. What is not clear is why bullying requires a code of practice whereas other workplace hazards are covered under the How to Manage Work Health and Safety Risks Code of Practice. The elevation of bullying to a special status such as that given by an approved code of practice may in fact divert resources and distract attention from other health and safety hazards and risks. Further, despite the assertion that the draft Code does not extend the scope of the model Act nor create any new duties under the model regulations, the draft Code recommends an entirely separate framework for managing bullying, giving the impression that it is in fact a separate duty. The RIS itself notes that the existing legislation already addresses matters such as information and training, consultation and resolution of issues. Additional infrastructure to manage bullying places an unnecessary burden on PCBUs without improving safety outcomes. Guidelines that provide practical methods of addressing bullying as part of health and safety management will impose significantly less cost and achieve the result of embedding bullying prevention into the safety culture of the workplace. Integration of bullying into the management of health and safety will allow the existing procedures for consultation, coordination, and issue resolution to be adapted to manage bullying in a similar way. This will significantly reduce the costs for businesses arguably improve safety outcomes more than a separate system.

12 13

Draft Code, page 9. Model Work Health and Safety Regulations, reg. 293.

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3. Comments on the Regulatory Impact Statement (RIS) HIA contends that the costs and benefits detailed in the RIS do not justify the imposition of an approved code of practice to address bullying hazards and risks. The RIS states that costs are very difficult to estimate with any certainty, yet maintains that impacts will be ‘minimal’ in most cases. Further, it states that it is not possible to determine whether the imposition of these costs will in fact achieve the reductions in the prevalence of bullying necessary to justify them14. Evidence is not given in the RIS that the incidence and associated health and safety risks of bullying will more likely be reduced through the imposition of a code of practice rather than guidelines, nor that the measures outlined in the draft Code are effective or will be effective for all workplaces15.

3.1

Objectives of the proposed reform

The objectives outlined in the RIS can be achieved through national model guidelines, including creating awareness of bullying as an issue and creating a culture of intolerance towards it; providing a safe working environment; minimising the damage caused by bullying by having appropriate policies and procedures in place; and providing greater capacity for information sharing16. One of the issues raised in the RIS is that guidelines will not be taken up by PCBUs to the same extent as a code of practice17, and so awareness of the issue will not be as strong. However, guidance material on bullying is very frequently downloaded from work health and safety authority websites18, which indicates that this material is being used, or at least referenced, extensively. The RIS also notes that regulatory activity aimed at education and raising awareness also increases demand for these resources19. This indicates that these activities, rather than a code of practice, will be sufficient for raising awareness. Further, integration of bullying into existing health and safety management will embed the issue into the culture of safety more effectively than a separate framework. HIA believes that a code of practice is not necessary to minimise the damage caused by bullying. Practical guidelines that provide information on how incidents of bullying can be managed within issue resolution and incident response procedures will be sufficient to achieve this goal. There is no indication in the RIS that bullying in jurisdictions with codes of practice is any less prevalent than in jurisdictions with guidelines. Indeed, the RIS notes that there are no evaluations available to determine the effectiveness of current approaches to bullying such as guidelines20, but assumes that they are insufficient to address the issue. The capacity for information sharing across jurisdictions is already in place, and can be enhanced by model guidelines implemented in each jurisdiction, without the need for a code of practice. The difficulties created by the lack of a standard definition of bullying nationally, including comparison of research and data, and uncertainty around the prevalence and impact

14

RIS, page 37. Ibid., page 36. 16 Ibid., page 14. 17 Ibid., page 17. 18 Ibid., page 7. 19 Ibid., page 11. 20 Ibid., page 37 15

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of bullying in Australia21, can be addressed with model national guidelines, and the impost of a complete framework cannot be justified by this goal.

3.2

Costs of a code of practice

HIA believes that the costs of implementing the draft Code are significantly underestimated. The methodology used by the RIS in determining costs is questionable. The use of average weekly earnings does not reflect the full cost to a business, but only the possible wage cost. Other costs that are not considered included opportunity costs and purchase costs such as for products or training. This leads to an underestimation of the actual costs to business. Further, the time allocations estimated in the RIS are understated, and assume existing expertise and a static workforce, such as that found in a business with a corporate structure and human resources capacity. This assumption is not appropriate for small business, including those of housing construction.

3.3

Bullying policies and consultation

HIA believes that the impact on those PCBUs that do not yet have specific bullying processes in place will be far more significant than estimated by the RIS. Despite advice in the RIS and the draft Code that bullying should be addressed in a similar way to other workplace hazards and risks, the draft Code prescribes an entirely separate framework to address the issue, rather than assessing it in the context of the general duties under the legislation. This includes the establishment of investigation procedures and the documentation of an issue resolution procedure separate to that required by the WHS legislation. For example, the cost to a small business of developing and implementing a bullying policy is based on 30 minutes of time for one person, and only 10 minutes to ‘consult with workers’22. This is a gross underestimation. Further, the housing industry is characterised by a very mobile workforce, where not all workers are at the workplace at the same time, and where a builder may not have a complete knowledge of the people employed by sub-contractors on a day-to-day basis. In these circumstances, it would be far more time consuming to consult with workers about bullying as a separate exercise to the consultation required by the WHS legislation. The formal, documented policies and procedures recommended in the draft Code suggest that these are necessary for compliance. HIA is concerned that, despite some vague mentions in the draft Code regulators, inspectors and others would take the view that failure to have these documents is a failure to comply with the Code, and that this would create an unnecessary additional burden for PCBUs in the industry to produce extensive written procedures and evidence.

3.4

Information and training

The RIS states that information and training will be required for all workers23, yet estimates that only 20 minutes of time per person, and a total of $60 for this to be provided in a small

21

Ibid., page 12. RIS, page 64. 23 Ibid., page 29. 22

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business24. This does not account for the recommendations in the draft Code for training managers and supervisors (or business owners in the case of very small businesses). HIA is aware of one full-day training course offered by one regulator that costs $490 to register. As this course is offered by the regulator, it may be considered as necessary to achieve compliance with the Code. In addition, attendance at such a training course also involves the opportunity cost of a day’s work of the attendee, and any incidental expenses such as travel, accommodation and meals. This amounts to a substantially higher cost than that estimated by the RIS. Even for a medium sized enterprise, the stated initial cost of $722 and 20 minutes of time per person does not account for the formal training that could be required by the regulator. The RIS also does not consider any ongoing training costs that may emerge as a result of normal staff turnover or the contracting nature of the housing industry. Such training should be optional where a PCBU believes that it is necessary as part of work health and safety training or will improve safety in their organisation, rather than recommended by a code of practice with evidentiary status.

3.5

Responding, record keeping and reporting

The RIS also significantly underestimates the costs of the increased paperwork that will be required to comply with the draft Code, particularly for developing documented policies and procedures, conducting investigations, record keeping and reporting. Even if a PCBU has existing, specific policies and procedures in place for bullying, these will need to be reviewed and amended to comply with the Code, and will take considerably longer than the 30 minutes estimated by the RIS25, particularly for a PCBU without specific expertise in this area. Further, the draft Code advocates treating all matters seriously, which would require substantial time and therefore cost on the part of the PCBU regardless of the merit of an allegation or observation, and especially if investigations are held. Should an external investigator be required, or considered to be required by a regulator inspector, this will further increase costs well above the $150 total cost estimated by the RIS26. Responding to reports of bullying in the ways suggested by the draft Code will have a much greater impact, in both monetary cost and time, than considered by the RIS. The principles of natural justice advocated in the draft Code27 will not be familiar to many PCBUs, and the lack of practical guidance and examples in the draft Code further compounds the difficulties that PCBUs will face. Responding to reports is further complicated in the housing industry, where multiple duty holders may be required to respond, representing increased costs and time not considered by the RIS. Finally, there are costs involved in the extensive record keeping and reporting recommended by the draft Code. This includes reviews of control measures, reporting on the results of these reviews, and reporting on the results of investigations.

24

Ibid., page 64. RIS, page 64. 26 Ibid. 27 Draft Code, page 16. 25

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4. Other comments – the Fair Work Act It is disappointing that the recent amendments to the Fair Work Act 1999 (“Fair Work Act”) were not taken into account in either the draft Code or the RIS. Great care must be taken that the draft Code does not inappropriately interact the Fair Work Act. HIA is particularly concerned that as there is no assistance within the legislative framework of the Fair Work Act as to how to determine whether the alleged behaviour creates a risk to health and safety or is unreasonable, parties and the Commission with inevitably rely on external sources of material to inform their views, including the Code. Case law has demonstrated that codes of practice can weigh heavily in such an assessment. The amendments provide for the Fair Work Commission to make ‘any’ order it considers appropriate if it is satisfied that a worker has been and will continue to be bullied at work. However, the Commission is not required to consider what is ‘reasonably practicable’ for an employer to do, and may rely on the onerous requirements of the draft Code in making an order without regard to this important consideration. The Explanatory Memorandum to the amendments makes it clear that a bullying order will not necessarily be limited or apply only to the employer of the worker who is bullied but could also apply to others such as co-workers and visitors to the workplace28. Further, the Commission may make orders that involve changes to business and work practices, and directions as to training, investigations and reporting. These can impose significant costs on the PCBU, particularly if a method other than that prescribed in the Code is seen by the Fair Work Commission as insufficient, given that there is no obligation on the Commission to consider these other methods. For these reasons it is critically important that the draft Code be progressed as guidelines, and that careful consideration be given to how the document may be used in the context of other Acts and jurisdictions.

5. Comments on “Workplace bullying – a worker’s guide HIA has no objection - in principle - to the promulgation of a guide to assist workers to understand workplace bullying. It is essential that any guide properly reflect the requirements and expectations of the WHS legislation, and are consistent with any other guidance material. This means that any revisions to the draft Code, for example, must be reflected in the Guide. In addition, the one-size-fits-all measures to address bullying detailed in the Guide are not appropriate, and may cause more difficulties between workers, employers and unions. The Guide outlines the process by which an employer or PCBU ‘should’ respond to an allegation of bullying. This procedures are extensive and go beyond that which is required by the WHS legislation and the draft Code, and do not include any consideration of what might be reasonably practicable. These procedures should be revised to be less prescriptive and provide more flexibility for PCBUs to use procedures that are suitable for their business. Great care must be taken that unrealistic expectations are not created that cannot practically be met by a PCBU. For example, the Guide refers to an organisation’s performance management 28

Fair Work Amendment Bill Explanatory Memorandum, para 118.

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procedures29, where in fact, no formal procedures may be in place, particularly in small businesses. This creates an expectation in the worker that formal procedures are necessary, where in fact this may not be the case. Likewise, the recommendations around bullying policies and procedures create the expectation that formal policies are necessary in all cases. The Guide does not provide the necessary flexibility or options for businesses of different sizes or natures, such as those found in the housing industry. For example, the Guide assumes the existence of a manager, supervisor, human resources officer or grievance officer, without considering that there may be no such positions in the organisation.

6. Conclusion and recommendations HIA cannot support the imposition of an approved code of practice for the prevention and management of bullying in the workplace. While workplace bullying is an important issue, HIA does not believe that the draft Code as it is currently written can be complied with by PCBUs, particularly small business. The broad construct of bullying that renders every interaction at the workplace a potential bullying risk, means that PCBUs will require specialist skills and competencies in order to determine which interactions are bullying or have the potential to be bullying. Further, the requirements in the draft Code for policies, procedures and investigations are not practical for residential construction businesses, the majority of which are small businesses with few employees and limited resources. The draft code itself recommends that workplace bullying be addressed in the context of general workplace management and guidance developed to assist PCBUs to achieve this, without the heavy-handed and quasi-regulatory approach of a code of practice. The RIS does not provide enough evidence to justify this approach, and significantly underestimates the costs of implementing the provisions of the draft Code. The draft Code itself does not fulfil the criteria established by SWA, and should not be progressed as a code of practice. It is prescriptive in nature and lacks practical guidance and alternative methods that would be of use to the housing industry, and as such will be extremely difficult and unlikely for the industry to comply with. The recent amendments to the Fair Work Act means that very careful consideration be given to whether the draft Code is progressed as a code of practice or a guideline. Given that as a draft Code it is likely to be relied upon by the Fair Work Commission, HIA recommends that it be developed as a guideline. It is essential that any guidance material does not inappropriately interact with other Act and jurisdictions. HIA recommends that Safe Work Australia work with business and industry representatives on guidelines that will be practical to implement and complement existing work health and safety management, rather than imposing a separate framework that requires specialist skills to implement and maintain.

29

Guide, page 2.

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Appendix A

Specific Comments on Draft Code of Practice The draft Code of practice does not provide the necessary flexibility that is required for the housing industry to comply with the duties in the WHS legislation so far as reasonably practicable. HIA is concerned that the methods outlined in the draft Code will be interpreted by regulatory inspectors and others as the only way to demonstrate compliance with the legislation. A code of practice on bullying is not justified by the content of the draft Code. Much of the content is general in nature rather than specific to bullying matters, and could be incorporated into other health and safety management practices. This would improve ease of compliance and reduce the regulatory burden on businesses. In general, the draft Code lacks practical guidance and examples for different types of workplaces, such as small businesses and mobile workplaces. Such guidance must be included if the Code is to be useful in assisting PCBUs to comply with their duties under the WHS legislation. The following comments on the content of the draft Code do not indicate HIA’s support for an approved code of practice.

Table 1: Specific comments on the draft Code of Practice Page

Paragraph Section

Comment and Recommendations

5

How does workplace bullying occur?

Stating that ‘bullying can occur wherever people work together in all types of workplaces’ removes any proportionality of hazard, risk and control. It places an unrealistic burden on PCBUs to minimise the risks created by this hazard. HIA recommends that the sentence be revised. The listed examples are simplistic, and don’t reflect the modern nature of workplaces. The Code should refer to bullying between workers of different PCBUs at the same workplace, and between workers in different teams.

6

Impact of workplace bullying

This section appears to describe the harm that could result from a risk eventuating. In risk management terms, this would require a PCBU to understand, on an almost individual basis, the psychological and/or harm that could result from bullying. Such an assessment would require the PCBU to have the appropriate assessment capabilities to determine the extent of the serious medical issues listed as examples.

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Page

Paragraph Section

Comment and Recommendations

6

Reasonable management action

Several examples listed require policies and procedures to be in place for the action to be considered ‘reasonable’. This is not practical for many small businesses to have documented policies on, for example, promotion and performance management. These requirements enforce an extensive business framework to manage a single potential risk.

7

Para 4 – Workplace conflict

The reference to conflict “benefiting an organisation by generating debate leading to new ideas and innovative solutions” is a superficial statement that should be removed. It would be useful to have examples of ‘conflict’ that would not be considered bullying.

Para 10 – Who has duties …

The sentence “Health is defined as both physical and psychological health” should be moved to the end of the Introduction, to provide a clear link between the WHS legislation and the reason for this Code.

Para 11 –

In outlining the duties of a PCBU, the draft Code repeats the requirements of the Act, without linking these requirements to bullying. This link must be made for the draft Code to be useful in providing guidance to PCBUs.

“A person conducting”

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Officers

This section implies that separate, special consideration needs to be given to bullying by officers. This is misleading, and has the potential to divert scarce resources unnecessarily from other work health and safety issues.

Workers

This section also lacks a specific connection to bullying. The duties that apply to visitors and clients should also include suppliers and union officials.

1.4 What is required

The sentence that includes “ a work environment where everyone treats each other with dignity and respect” is unnecessary. HIA recommends it be deleted as it add no value to the draft Code or to health and safety.

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Page

Paragraph Section

Comment and Recommendations

8

Consulting workers

This section appears to require specific consultation on bullying, in addition to that required by the WHS legislation. More practical guidance needs to be given on how a PCBU can integrate bullying into broader WHS consultation. Consultation duties that are required by the WHS legislation should be identified as such with pinpoint references. The dot point “proposing changes to the way work is performed” appears to unduly interfere with the operations of a business. With no further guidance or examples, and the broad concept of bullying in the draft Code, any minor change in the workplace would require specific consultation on bullying.

9

Consulting and co-operating

This section requires substantially more guidance and practical examples, particularly for independent contractors working on the same site. It contains no information on how concurrent duty holders can discharge their obligations, aside from summarising the regulations.

10

Identifying the hazard

All of the processes for identifying a bullying ‘hazard’ are post-fact – they cannot be identified until after an incident may have occurred, and the PCBU is already in breach of the Code. The processes listed will be extremely difficult for the residential construction industry to undertake. The industry is largely comprised of a mobile and transient workforce, with a Principal Contractor who is not always on site. These processes also require an extensive infrastructure that is not available to small businesses.

2.2 Controlling the risks

This section does not use the hierarchy of controls mandated by the regulations (Regulation 36). PCBUs must use this hierarchy to control risks that do not have specific control measures prescribed, such as bullying.

General workplace management

The Code needs to outline how bullying controls can be integrated into existing health and safety management, rather than implying that an entirely separate framework is necessary. Further, the methods outlined are very onerous, particularly for small businesses, and require specific procedures, such as formal recruitment and performance management procedures.

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Page

Paragraph Section

Comment and Recommendations

11

Design safe systems of work

Many of the methods outlined are not practical for the residential housing industry. The industry must be flexible in order to respond to unexpected events, particularly in terms of staffing and work hours. These things can change on a daily basis, and cannot be subject to extensive consultation with workers.

Developing productive workplace relationships

This section is very prescriptive, and does not provide any guidance for small businesses with few employees and limited resources. For example, the requirement to ‘recruit managers who are competent in people management’ is unrealistic going well beyond the content of any reasonable WHS code of practice

Para 3

The Code needs to clearly detail alternative methods of compliance, rather than simply stating ‘small businesses may be able to manage … without formal policies and procedures’. In addition, this sentence contradicts most of the Code, which continually emphasises the need for policies and procedures.

Specific control measures

This section incorrectly implies that specific control measures are required by the WHS legislation.

Para 1

This section contradicts the previous mention that formal policies may not be needed.

12

The listed requirements for a policy are very detailed and onerous, and would be beyond the capabilities and resources of small businesses. Hazard reporting

This section is very general and does not relate specifically to bullying. HIA recommends that it be deleted and replaced with a statement about including bullying in general health and safety hazard reporting as per the Code of Practice – How to Manage Work Health and Safety Risks.

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Page

Paragraph Section

Comment and Recommendations

12

Para 4

The requirement for specific reporting and response procedures is an unreasonable burden on a small business. The methods for implementing reporting and response procedures are general in nature, and do not articulate why bullying procedures should be any different to those for other health and safety matters. The section requires practical examples and guidance in order to be effective. The requirement for consultation again implies that a separate consultation is needed for bullying, and no guidance is given on how to integrate this into broader health and safety consultation.

Providing training

This section is very general, and could apply to any work health and safety matter. Further, given the complexities of bullying behaviour, HIA does not believe that a training course such as that advocated by the Code will equip supervisors or workers with the necessary skills to comply with the Code. HIA recommends that “where provided” be inserted after “induction training”, as not all workplaces have or need specific inductions.

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Training

See comments on “Providing training” above. The training requirements outlined in this section are onerous, and will be very expensive for a small business to undertake. Face-to-face training is not practical for the housing industry, which has a mobile and transient workforce. Other methods of compliance need to be included.

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Providing workers with information

This section assumes a static workforce on a permanent site. This is not the case for much of the residential construction industry, and it is not sufficient to mention tool box talks (which are not always held) or handing our newsletters and pamphlets.

Monitoring and reviewing

Reference needs to be made to the Regulations 37 and 38, which describe how control measures must be reviewed. Several of the requirements for the review are not practical for small businesses. Reporting the results of a review to managers etc. is not required by the regulations. This sentence should be deleted. - 18 -

Page

Paragraph Section

Comment and Recommendations

15

3.1 Early intervention

This section assumes that all businesses have such staff such as supervisors, management and human resources personnel. This is not necessarily the case for all small businesses.

Supervisors and line managers

This section does not describe how a supervisor can fulfil their duty to protect all workers at the workplace, regardless of whether the worker is in the same team. This is particularly relevant in housing construction, where multiple contractors and teams could be working at the same site. Guidance needs to be included to account for this situation. Further information on how and when to escalate an issue needs to be given, including on what is meant by “escalate”.

15-16

Principles when handling reports

This section gives no guidance on how to manage frivolous or vexatious reports, but assumes that all reports will be serious. Practical guidance in a dedicated section needs to be included. The principles outlined are very detailed, and require considerable resources to be effective. Simple alternative methods of upholding these principles should be included. Some of the requirements listed go beyond what is required by legislation, such as support for all parties and detailed record keeping. Practical examples must be included in this section, for example, on how to protect a worker or witness from victimisation in a small workplace. The requirements for record keeping should be directly linked to the WHS legislation, or provided as an option rather than a recommendation.

16

Principles of natural justice

The principles outlined are complex and legalistic. HIA recommends that they be expressed in layman’s terms and incorporated into the principles for handling reports. The principle of having decisions reviewed is not required by legislation, and is beyond the capabilities and resources of many small businesses.

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Page

Paragraph Section

Comment and Recommendations

17

Issues resolution procedure

This section implies that a separate procedure to that required by the legislation is needed for bullying. Specific reference to Regulation 23 on issues resolution should be inserted, and practical guidance given as to how these existing procedures can be applied to bullying issues.

3.4 Actions after reports

This should be incorporated into or connected with the possible need to review control measures. The recommendation to discuss findings with workers and health and safety representatives is not justified in the text. An explanation of why this should be done, as well as practical examples of how it can be done while maintaining confidentiality should be given.

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Investigations

This chapter should be deleted, as it is not consistent with the style of other codes of practice, and is not specific or unique to bullying. It goes far beyond the requirements of the legislation, and should not be included in a code of practice. The style of this chapter implies that an external party must conduct an investigation. It should be explicitly recognised at the beginning of the chapter that this may not be required, including alternatives. Great care must be taken that this chapter does not conflict with the legislative provisions for investigations by work health and safety authorities.

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Para 2

Examples of when this might be the case should be included.

4.1 Who should conduct the investigation?

The advantages and disadvantages of engaging an external person should be detailed, noting that such engagement may be beyond the financial capacity of a small business.

4.2 Informing parties

Examples on how this may be done should be included.

Outcomes of an investigation

The requirements of this section are very onerous, and require substantial resources. It is not practical for small business, and should be simplified considerably. Further, the actions recommended are not specific to bullying, and should be incorporated into general work health and safety management.

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Page

Paragraph Section

Comment and Recommendations

20

Para 4

This paragraph is the only reference to vexatious claims. This issue requires much greater emphasis and detail in order to assist PCBUs to comply with the code in a practical manner.

21

Reviewing the work environment

This section should make direct reference to reviewing control measures, or be deleted.

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