Amongst the business of doing business it is easy to overlook creating, implementing or updating workplace policies. Furthermore, there is an expectation of these workplace policies being voluminous or seemingly irrelevant; you know that thick folder sitting on the bookshelf in the boss’s office or filed on the common drive no-one looks at.
However, workplaces where this responsibility is taken seriously set benchmarks that protect their interests, provide their workers with certainty and consistency and promote a positive workplace culture.
Should Be Carefully Constructed
On 5th April 2021, My-Linh Dang of Metis Law in the article ‘Solid workplace policies: What are they and how to craft them’ gave 4 Top Tips for writing workplace policies
Emphasise the need for compliance
If you want staff to comply with certain conduct, this should be made clear in the policy – it should not be expressed as aspirational. You can do this by using language such as “will”, “must” or “is required to”. Avoid, for example, “depending on the circumstances” – as this is a recipe for confusion, and the policies may be deemed informative rather than binding.
2. Be clear and specific
Especially about how you will enforce your policy. For example, if you want to ensure you can terminate the employee for breach a drug and alcohol policy, the policy must state a “zero tolerance” approach to breaches. You must also ensure that you are clear on the methods that will be used for testing for drug and alcohol (and that the testing methods are actually accurate).
You must be able to prove that you have communicated a workplace policy to your staff.
3. Provide proof of communication
You must be able to prove that you have communicated a workplace policy to your staff. The best way to do this is to get staff to acknowledge and sign the policy when they receive their letter of offer.
4. Be open
Being approachable and open to feedback is key to a successful workplace policy. Have a staff meeting and allow your team to ask questions, give comments or provide feedback.
Need To Be Tailored
Workplace policies also need to be tailored to the organisation. There is no one size fits all. The nature of the business and the requirements of its employers will dictate the nature and requirements of additional key workplace policies. However, as a guide Adam Raleigh of Broadley Rees Hogan Lawyers in his piece, ‘The necessity of having effective workplace policies – Potential risks for employers’ proposed the following:
Type of Policy: Workplace Health and Safety Policy
Objectives of Policy: Ultimately, the content of this policy will depend upon the particular operational requirements of the business and the special safety procedures which need to apply. These policies are an essential component of an employer’s compliance with its legislative health and safety obligations. As a minimum, all such policies should: explain the reasons for needing a safe workplace and for employees being aware of the potential risk of injury to others; set out the necessary safety procedures which employees must follow; and specify the employer’s procedures in dealing with health and safety incidents.
Type of Policy: Workplace Harassment (Bullying) Policy
Objectives of Policy: To explain the necessity of employees participating in a safe workplace, free from harassment. To clearly define conduct which may constitute bullying. To provide employees with details of the procedures and other resources which are available if they believe they have subject to such harassment. To provide a description of the possible consequences to the ongoing employment of an employee following an investigation into any complaint.
Type of Policy: Drug and Alcohol Policy
Objectives of Policy: To provide a clear description of the requirement for employees to participate in a healthy and safe work environment. To detail the potential adverse effects of employees being affected by alcohol or drugs at the workplace. To detail the requirements of an employee’s obligations regarding the use of, and being impaired by, alcohol and drugs at the workplace and during work functions. To provide, in appropriate workplaces, the requirement for the employee to undergo regular testing for the existence of alcohol and drugs (including the possibility of random testing being conducted) and the employee’s consent to these tests. To clearly specify the consequences of a breach of these requirements and if the employee is dishonest in providing any details.
In his commentary Raleigh also advised effective workplace policies must include a range of “Essential Elements” such as (but not all):
a detailed description of the purpose of the policy
the scope of the workplace activities applicable to the policy
a detailed treatment of the employee conduct which will be not acceptable using examples
a reference to the relevant laws and how certain conduct may contravene such laws, including the possibility of the employer being vicariously liable for an employee’s actions in certain circumstances
the methods which the employer will use to investigate the conduct of the employees under the policy and the procedures which will be implemented to investigate any complaints or inappropriate behaviour
the relevant disciplinary action and other consequences which will apply if there is a breach of the policy including the possible effects on the ongoing employment of the employee (such as termination in appropriate cases)
the program of inducting new employees to the requirements of the policies and the ongoing education of employees of such requirements including any variations which may be introduced
language which is simple, clear, and precise and which avoids using industry statements or meaningless aspirational phrases (for example, employees must “keep it real”)
a system of regularly reminding employees of the obligations of policies, including special policies at the relevant time (for example, before social events).
Consequences Of Poor Workplace Policies
Poor workplace policies can have negative consequences for the employer
Raleigh went on in his article to give examples of cases where poor workplace policies had negative consequences for the employer, like:
In Richardson v Oracle Corporation Australia Pty Ltd and Tucker  FCAFC 82, the employer was liable for substantial damages to an employee that had been sexually harassed as the court found that the employer’s policies did not clearly outline all reasonable steps to prevent sexual harassment conduct. The court found that the the employer’s relevant policy did not make it clear that: sexual harassment is against the law; legal action can be taken against anyone who engages in such conduct; and that an employer can be vicariously liable for such conduct of its employees.
The case of Romero v Farstad Shipping (Indian Pacific) Pty Ltd  FCAFC 177 found that while the company’s Workplace Harassment and Discrimination Policy formed part of the employment contract because of the language used in the Policy and the surrounding circumstances of the education and enforcement of the Policy, the employer had breached its obligations to an employee by not thoroughly investigating a harassment / discrimination complaint. There is no point having a sound policy if it is not followed.
To Wrap It Up
“To wrap it up” as Dang stated, workplace policies may not be exciting but she says, “they do encourage consistency, respect and accountability”. Deng proposed effectively crafted workplace policies form the foundation of a “successful business” with a sound organisational climate.
Undoubtedly any company that can boast positive people management has a real competitive advantage in the marketplace.
How Do Your Workplace Health & Safety Policies Stack Up?
We Make Excellence Possible!
Active OHS has a team of WHS Specialists who can assist you in crafting sound policies to ensure your compliance with the relevant Acts.
About the Author
Kerry Foster Kerry Foster graduated with a B. Social Work in 1980 and since 1995 has been the Director of Active OHS a WorkCover and Comcare Accredited Workplace Rehabilitation Provider. Active OHS is a Occupational Rehabilitation Centre in Sydney NSW that also offers WHS Training and Consulting, Ergonomic and Medico-legal Assessments as well as Outsourced RTW Co-ordinators.