Workplace policies can be a valuable tool to effectively communicate with employees and reduce your legal liability. You need to ensure employees are aware of, understand and agree to comply with your workplace policies. This article sets out:

  • what workplace policies are;
  • differences with an employment contract; and
  • when and how new and existing employees should accept and access them.

What Are Workplace Policies?

In short, policies are written directions from the employer to employees (and other workers such as contractors and volunteers). As an employer, you’re entitled to make lawful and reasonable directions to employees verbally or in writing including using policies. They are useful as a way to efficiently and consistently communicate key items to your employees without having to direct each employee individually. There are two types of policies: 

  1. operations policies; and
  2. core policies.

Operations Policies

Operational policies speak to any business matters that you wish to efficiently communicate and may include matters such as parental leave, expenses or company car usage.

Core Policies

Core policies may speak to your legal liability by demonstrating that you took reasonable steps to prevent certain conduct that you are otherwise vicariously liable for. Such conduct could include:

  • bullying;
  • harassment; and 
  • conduct which would put workers’ work health and safety at risk. 

The core recommended policies are:

  • a work health safety (WHS) policy;
  • an anti-discrimination harassment and bullying (ADHB) policy; and
  • an information technology (IT) policy.

Policies can also be a basis for disciplinary action or performance management as well as a tool to defend a claim such as an unfair dismissal claim. Your policies should include that a breach may result in disciplinary action including termination. 

Breaching a policy alone may not be sufficient to justify or defend termination, but may assist you along with other items and this will depend on the facts.

Differences Between Workplace Policies and an Employment Agreements

An employment agreement includes the terms of the employment between you as the employer and the employee. It includes key items such as:

  • intellectual property;
  • confidentiality;
  • probation;
  • termination including notice period; and
  • specifics of the engagement such as remuneration, duties and hours of work.

It can only be varied by written agreement and it should not create unnecessary obligations on the employer to avoid being in breach of the agreement.

By contrast, policies are not an agreement but written directions from you to the employee. They can be varied at any time so long as changes are meaningfully communicated to employees. It is best not to include any promissory language or create unnecessary obligations on the employer in the policies.

When Should New Employees Accept Workplace Policies?

On that basis, employment agreements should be separate to policies and should not incorporate policies. If your employment agreement makes reference to and includes policies, this has the potential to expose you to breach of contract claims where the policy is breached by the employer.

Although employers may like to issue policies along with the contract of employment as a starter pack, that can risk the policies forming part of the contract. Best practice is to issue policies and the contract at different times. A good approach would be to issue the contract before the employee starts work and then provide the policies on commencement.

How Should New Employees Accept Workplace Policies?

You can provide your policies to new employees in hard copy or over email on commencement. You should require them to read them and respond in writing that they have read, understood and will comply with the policies. They can complete this by signing a declaration at the end of the policies or confirming via email.

How Should Existing Employees Accept and Access Workplace Policies?

You should maintain your policies in one easy to find place. This is typically on your company intranet page. In addition, you should regularly send them to employees to receive confirmation in writing they will comply with the policies.

For new policies or changes, you should send a business-wide email updating employees and require all employees to read the new or amended policies and agree in writing to comply with them.

In some circumstances, acceptance in this form is not sufficient. This will depend on the nature and circumstances of your business and you may consider carrying out regular training on the policies.

For example, for a construction business, you may wish to undertake regular training on employees’ WHS obligations including with respect to your WHS policy. If you’ve recently investigated workplace harassment, you may also wish to respond by undertaking training on workplace harassment including with respect to your ADHB policy.

Key Takeaways

As an employer, workplace polices can be an important tool to manage and discipline employees as well as reduce your liability. It is important to ensure they are communicated and agreed to separately to the employment agreement to avoid breach of contract and so you can vary your policies without agreement. Instead, provide the policies at a later time, for example, on commencement of employment. You should maintain easy access to the policies, regularly communicate existing policies and update employees on changes to policies. If you need help writing your policies or understanding your obligations at law, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

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