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Too tired for real work – bosses to become "yawn police"?

New Preventing and Responding to Workplace Bullying draft Code of Practice

Employers are concerned that they will now become the "yawn police" under a draft Code of Practice for workplace fatigue promulgated by Safe Work Australia.

The draft Code has proposed that employers "eliminate or reduce the need to work extended hours or overtime" so staff don't get too tired. It also states that "safety critical tasks" such as administering drugs, driving a truck or electrical work, should not be performed in the post-lunch "low-body clock period".

Rosters should also be drawn up to accommodate workers' social lives: "If a worker leaves their job tired and exhausted they may be less able to enjoy out of work activities or could be a danger to themselves and others in the community," the document says.

"Likewise, if a worker arrives at work unfit for duty due to a lack of sleep, illness or other condition, they may be less productive or could be a danger to themselves and others in the workplace.

To avoid any potential conflicts between personal and work demands, controls include (to) consult with workers and design shift rosters that will enable workers to meet both work and personal commitments. The draft Code says employers should train workers in "balancing work and personal lifestyle demands".

The draft Code - to be finalised next year - will be admissible in court if an employer is charged with breaching workplace health and safety laws.

Many employers view this as an unwarranted third-party intervention in employer-employee relations. Speaking in News Limited papers, Australian Chamber of Commerce and Industry Chief Executive Peter Anderson said employers should not be held responsible for fatigued workers worn out from partying or family demands.

"It would require employers to delve into matters of a personal and private nature that are none of their business," he said. "We don't want to be the yawn police".

The Australian Industry Group's representative on the Safe Work Australia board, Mark Goodsell, warned that employers might be held responsible for the fatigue of staff moonlighting in other jobs. Any boss who pried into a worker's partying habit would "look like a nark and invade their privacy", he said.

"People can lie to you and say they weren't doing anything on the weekend to make them tired," he said. "They've got no obligation to tell you what they're doing at home. But there is a legal implication that if an employer is accused of breaking the law, the fact you weren't following the code can be used against you."

Even unions have criticised the code, with the Australian Manufacturing Workers' Union complaining the fatigue checklist is "not very helpful". "How would a workplace assess such things as 'reduced immune system function' or 'hallucinations' and 'headaches'?" it told Safe Work Australia in a submission.

The code is still open for comment – Safe Work Australia said it was revising the code to address concerns but would not give details of any changes.

"Changes aim to reflect recent research findings and outcomes of case law," a spokeswoman said.

iHR emphasises that all employers are legally responsible for providing a safe workplace and can be subject to criminal prosecution. The draft Code can be found here.

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