Time and time again, disputes have arisen because an employee has either; acted in direct contravention of a workplace policy or procedure, or has claimed that they are not obliged to undertake certain work activities because they were not expressly identified as terms of engagement under their employment contract. Thus the question arises, do employee have to adhere to terms found outside the contract of employment? Like most questions of law, the answer will largely depend upon the individual circumstances. Even so, there are some general law principle which shed light on the situation.

Terms found in other documents

A contract of employment may refer to terms that are to be found in external documents. The range of documents that such terms may be found in are expansive and may include:

  • modern awards,
  • national employment standards,
  • industrial agreements,
  • company codes of conduct,
  • workplace rules,
  • manuals,
  • company handbooks, and
    policies and procedures.

It is important to note that just because a contract of employment refers to external terms does not mean that those terms form part of the employer-employee engagement. They may be mere guides that are not intended to have any legal force. Whether or not an employee is bound to adhere to terms propagated in external documents will ultimately depend on the objective intention of the parties at the time of contracting.

When we talk about the objective intention of the parties, we must ask ourselves, would a reasonable person in the circumstances have intended or understood the term in question to have contractual force? If the answer is yes, it forms part of the employment contract. If the answer is no, it does not, and it operates as a mere guide, the employee having no obligation to abide by it.

Making changes to terms found in other documents

What about instances where terms found in external documents are expressly understood to form part of the employment contract but are later changed – will the employee be bound by such changes? The answer is a resounding no! It is never permissible for an employer to effect a unilateral change to the employer-employee relationship. An employer cannot makes changes to external documents, thereby altering the terms of engagement under which the employee was hired, in an effort to change the employee’s terms of engagement. If a change is to be implemented, it must be assented to by the employee. In such circumstances, it is advisable to either vary the existing contract of employment or create a new one.

Conclusion

Businesses tend to take comfort in drafting an array of workplace policies and procedures that address everything from seating plans, to the permissibility of bringing confectionary items containing nuts onto the work premises. While most of these documents are designed to act as mere guides to make an employee’s day-to-day work life easier, there are times when such terms are intended to have contractual force. In such instances it is wise to consult a legal professional to ensure that the terms are effectively incorporated and form part of the employment relationship.

LegalVision has a team of great employment lawyers who can assist you. Please call our office on 1300 544 755 and our Client Care team will happily provide you with an obligation-free consultation and a fixed-fee quote.

Vanja Simic

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