Despite this, the function of policies and best practice management is often given less attention than required, potentially leading to costly outcomes.

The Victorian Chamber’s Workplace Relations Consultants can help businesses ensure their policies are fit for purpose. Here are some of our key tips to consider.

#1: Make sure to provide actual directions

Workplace policies operate as standing ‘lawful and reasonable directions’ to staff. Courts and tribunals have established (through their decisions, known as common law) that employees are obliged to comply with lawful and reasonable directions.

There are many laws and instruments which create legal obligations about how an organisation or its staff must act. Workplace policies help ensure that an employer is ‘passing on’ or making clear what these expectations are with employees. Employers can also ‘raise the bar’ for their own employees by setting specific expectations that complement and add to legal obligations.

While a lot of policies set out definitions (such as bullying) and explain concepts (which they need to do), many policies actually fail to provide any clear direction to employees about their behaviour. This is critical if an employer needs to rely on that direction in a disciplinary process.

#2: Avoid overly prescriptive policies

It is best practice to ensure policies are not unnecessarily procedural. When this occurs, they tend to be overly prescriptive and often lack focus on high-level issues and providing guiding principles for managers/employees.

While it may be tempting to try to provide for every eventuality under a policy, this can result in complex policies that produce unintended consequences. It is not possible to cover every possible scenario. Prescriptive policies may lock managers or employees into unintended outcomes without providing enough flexibility for management discretion at the time.

A good example of this is disciplinary policies that require three written warnings to be issued to employees. These will not be appropriate in some circumstances and are not a legal requirement under the Fair Work Act 2009 (Cth). For example, where an employee makes a serious mistake that puts others at risk, a first and final warning may be more appropriate.

Policies are of greater value if they help guide managers on the relevant factors they should consider to decide an appropriate outcome, in line with the factors we know are most important according to legislation and case law.

#3: Be careful with compliance language

While we want to be clear with employees that we take certain matters seriously, there may be consequences for actions and compliance is important, there can be a tendency for the language to become heavy handed or punitive. Examples include: “we will not tolerate bullying”, “we will monitor and enforce this policy” or “this is a privilege and not a right”.

This kind of language can be problematic given most employees are mature adults who understand the benefit of positive workplace culture. Research shows this language contributes to reduced levels of employee engagement – the degree to which employees feel connected with the organisation.

Instead, aim to use warm and engaging language that recognises the mutual benefits of the policy and encourages workplace conduct that supports the values and objectives of the business.

#4: Have the right policies in place

It is often not until a legal claim or serious workplace issue arises when it becomes apparent that a certain policy was needed or the existing policy was inadequate. This can be a tough and sometimes expensive lesson for an employer.

While most organisations will have a policy covering bullying, harassment and equal opportunity issues, a ‘must have’ policy is a Code of Conduct. There are many workplace behaviours that do not rise to the level of bullying or harassment but still need to be addressed early before becoming serious issues. This may include an employee who shouts or swears at a peer, which may not be repeated (so not bullying) and doesn’t invoke a protected attribute (such as age, gender, religion, sexuality), but can still be problematic.

A Code of Conduct will usually provide directions to staff about professional behaviour, treating each other with respect and issues such as confidentiality and conflict of interest.

#5: Avoid promissory language (or don’t make promises you can’t keep)

Employers need to be careful about including statements in their policies that appear to make promises to employees about what the organisation will or will not do in particular circumstances.

There have been some important legal cases where employees have claimed the organisation made contractual promises that it had not kept – and successfully sued the employer for breach of contract.

It is useful to include a statement to be clear about the nature of the policy document as a lawful and reasonable direction employees must comply with. Having said this, a disclaimer and being careful with language will not allow an employer to ignore its own policies – it is a matter the Fair Work Commission consider in claims such as unfair dismissal.

As a related issue, employers should be wary of referencing specific workplace policies in employee contracts as this may mean the employee needs to agree to any policy changes as a contractual matter rather than the employer having freedom to amend these as needed.

How the Victorian Chamber can help

For further assistance on workplace policies, including a review to identify any gaps in your policy suite to ensure they are up to date with the many legislative changes in recent years, or to discuss any of these issues, please contact the Victorian Chamber’s Workplace Relations Advice Line on (03) 8662 5222.

The Victorian Chamber also offers HR Comply for businesses that want to obtain a high-level health check of policies, procedures and other compliance matters.