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Policy or not to Policy? The Pros and Cons

It is not unusual in Australian workplaces, and more specifically in Local Government, for employers to have a suite of policies and procedures which guide and assist workplaces on a broad range of workplace matters, including, but not limited to, leave, discipline, work health and safety and social media.

Policies are essentially organisational ‘rules’. Where necessary, policies may extend upon or clarify entitlements or requirements covered in industrial instruments or statute. Procedures on the other hand typically provide processes or steps to be followed when implementing a policy or ‘rule’.

There are pros and cons associated with policies and procedures that should be kept in mind when employers are making decisions to introduce or amend such documents.

Pro’s
  • Communicate Rules and Expectations
Policies can provide employees with clarification regarding the employer’s rules or expectations. For example, policies on social media or the use of technology could provide clear guidance and instruction on acceptable use of social media platforms and employer property and detail the implications of non-compliance, for example disciplinary action.

Policies and procedures can also be used to provide guidance to managers and other employees to ensure consistency of interpretation and application of statute, regulations, industrial instruments, etc across the workplace. This is especially useful in cases where the industrial instrument is difficult to understand or ‘grey’ or where there is a need to extend upon provisions in such instruments. Procedures can provide a step by step process for implementation, for example, how an employee obtains approval for leave.
  • Manage Legal Risks 
Employers have a range of legal obligations that govern workplaces, including work health and safety and the prevention of certain types of behaviour in the workplace, including discrimination, harassment and bullying. An employer, and its officers, senior officers and workers (as defined in the Work Health and Safety Act 2011), may face severe penalties for failing to comply with work health and safety duties. Similarly, an employer can be held vicariously liable for the actions of its employees, officers or agents for failing to take reasonable steps to prevent, or respond to, unacceptable conduct in the workplace.
 
Employers should use workplace policies and procedures to:
  • provide employees with information and directions concerning work health and safety duties and processes;
  • explain what types of behaviour and conduct is prohibited at work;
  • outline repercussions of engaging in prohibited behaviour or not complying with rules and processes, including discipline and termination of employment; and
  • establish processes for reporting inappropriate conduct or safety risks, hazards and incidents.
Policies and procedures can assist in managing an employer’s legal risks through demonstrating that the employer:
  • complied with its legal obligations i.e. work health and safety obligations;
  • took reasonable steps to prevent prohibited behaviours i.e. bullying, harassment or discrimination in the workplace – and is therefore not vicariously liable for such behaviour;
  • had grounds to discipline or dismiss an employee who had engaged in prohibited behaviour or conduct in breach of a policy.
Whilst policies and procedures can assist in managing legal risk, it is not enough for an employer to simply have these documents in place. The employer must be able to demonstrate the policies are readily available to employees, that employees are regularly trained on the policies to ensure understanding, and that the employer actively enforces the policies.
  • Provide Adaptability
Policies, unlike contracts, can usually be amended from time to time by the employer unilaterally.This assists employers in being able to respond and adapt to changes in the workplace more readily, without the need to obtain employee consent to change terms and conditions of an employment agreement. Of course, changes to an existing policy or introduction of a new policy may be subject to certain requirements or restrictions under a relevant industrial instrument, for example, consultation with employees and their representative.

Con’s
  • Reduces Management Discretion
It is important for employers to manage their workplace productively and efficiently. To do so employers need to maintain discretion in delivering instructions to employees and in managing workplace issues within the scope of the relevant law/s. Introducing detailed and prescriptive policies and procedures can restrict or hinder the ability to make discretionary decisions.  This is especially evident in the cases of disciplinary or investigation policies and procedures that provide commitments from the employer to follow certain processes within set time-frames or deliver certain disciplinary outcomes.

Employers who fail to comply with such prescriptive processes and commitments, could find themselves in a situation where decisions or outcomes are not upheld due to a breach of their own policy e.g. a disciplinary outcome delivered could be disputed and reversed by the Industrial Relations Commission as a result of the employer not following their own policy or procedure.  
  • Failure to Comply
Employers who fail to comply with their workplace policies can expose themselves to litigation. This is often as a result of the policy being found to be incorporated into an employee’s contract of employment. Failure to follow policies or provide entitlements and benefits under such policies could be therefore deemed a breach of contract.   
  • Investment
Researching, writing, incorporating and enforcing policies and procedures takes time and resources. Policies need to be continually reviewed to ensure compliance with industrial instruments and assessed and evaluated to ensure effectiveness and relevance. As previously mentioned in this article, the employer is also obligated to provide regular training to ensure understanding and commitment to policies.
  • Opportunity for Pressure to Increase Entitlements and Benefits
Many employers are obligated under industrial instruments to consult with employees and their unions, where appropriate, when introducing or amending policies or procedures. Often consultation processes can result in the employer agreeing to a policy that extends upon existing entitlements and benefits. It is important that employers have a clear understanding of what they require the workplace policy to include, and hold fast on important matters, where it is reasonable.

Key Learnings for Councils

Employers should evaluate the benefit of current and future policies and procedures to ensure they are necessary and appropriate. It is important that employers distinguish between policies that are in place to manage legal risks, for example work health and safety policies, as opposed to unnecessarily repeating information already contained in legislation, certified agreements, awards or employment contracts and impeding management discretion. Generally, we advise against discipline or workplace investigation policies that limit employer flexibility/discretion.  Thought should also be given to what detail should be contained in alcohol and drug policies with respect to disciplinary outcomes.

Where it is determined that policies and procedures are appropriate, the employer is responsible for ensuring their employees have ready access to these documents and are regularly and appropriately trained. This is important when seeking to enforce the terms of a policy or rely on a policy as a defence in legal proceedings.

Contracts of employment or letters of offer should clearly specify that policies and procedures are for the benefit of the employer and do not impose any contractual obligations on the employer, that they are not incorporated into the terms of the employees’ contract of employment and can be varied, replaced or withdrawn by the employer at its discretion. Whilst such measures can be taken, it is important to remember consultation obligations which are often contained in industrial instruments, and how they apply in such circumstances.

Peak Services provides a range of templates for workplace policies on HR Advance. Further, all contract of employment templates provided in HR Advance have a clause relating to the application of policies and procedures.

For further information, assistance or advice please contact us by calling on (07) 3000 2148 or alternatively sending us an email at peaklegal@wearepeak.com.au.