POLICIES and PROCEDURES

INTRODUCTION

Irrespective of the size of a Company, policies and procedures provide the mechanism for managing the effective operation of a business. These documents set out expectations and confirm legal obligations of the parties – the employer and the employees.

CONTRACTS of EMPLOYMENT

As fundamentally important as employment contacts are to a Company, policies and procedures fall into the same category of importance. These provide the mechanisms for managing the workplace and the obligations of the parties, although it should be noted that policies should not be incorporated into an employment contract (v Goldman Sach v Nikolich [2007] FCAFC 120). They may be referred to in the employment contract but should not be included in the contract. Caution should be taken to avoid the inclusion of words such as “all company policies are to be observed at all times ….” in employment contracts (Romero v Farstad Shipping [2014] 231 FCR 403). This provides an expectation of a mutual obligation and so the employer may be found to be in breach of the employment contract. An employment contract should therefore clearly state that the policies do not form part of the contract.

COMPANY EXPECTATIONS

Employer expectations are important matters for employees to be aware off. Expectations really relate to employee conduct and cover a range of topics. A Company Expectation document summarises various aspects of the Company’s policies. This approach in turn can be seen in the employee’s performance and so the broad connection of different elements of employment is established.

POLICIES and PROCEDURES

Policies and Procedures can be varied and updated. It is an important element of policies and procedures that employees are aware of and have access to the most recent Company policies and procedures. It is also important that custom and practice is recognised when developing and implementing the Company’s policies and procedures. Policies and procedures, applied consistently including regular consultation, communications and training with employees, can create a positive workplace culture.

Ranging from legislated obligations and responsibilities such as work, health and safety to compliance with access and usage of confidential information, policies and procedures form a most important function in a company’s operations. Procedures as required under the Fair Work Act, when dealing with unfair dismissal cases, for example, are vitally important in also involving procedural fairness. Therefore a consistent application of custom and practice including precedent, are important ingredients when dealing with policy matters. Policies should at the very least reflect minimum legislative requirements.

FAILURE to COMPLY

A failure to comply with lawful policy can lead to a position of a breach of the terms of an employment contract which obliges employees to follow a lawful and reasonable direction (B, C and D v Australian Postal Commission [2013] FWCFB 6191).

Disclaimer: Richard Krajewski’s articles are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication.