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How to use these policies

Policies and procedures have an important role to play in managing your business, however they can expose you to legal risks. For example, if it is a term of an employee’s contract that they comply with a policy (which can also be inferred from the language in the policy) and your business does not follow the policy, you may be at risk of a breach of contract claim if the employee suffers damage as a result of your failure to follow the policy.

Other legal claims which may arise from the content and implementation of policies include: sexual harassment claims, WHS prosecutions, discrimination claims, unfair dismissal, unlawful termination, Trade Practices Act claims, breach of contract claims etc. These legal risks can be significant, as illustrated by a number of recent cases. If a claim is brought, depending on the damage suffered by an employee, the amount of compensation awarded can be very high, with some awards of millions of dollars being made in the most serious incidences. For this reason, it is important that your business takes steps to reduce these legal risks.

Steps to reduce legal risks 

To reduce the legal risks associated with your business' policies and procedures, you should:

  • Ensure all policies and procedures are clearly drafted. Policies and procedures should:
    • clearly indicate who they are to apply to (eg employees, independent contractors etc),
    • not be unduly prescriptive, or make too many promises, and
    • provide you with sufficient discretion when administering your policies. The policies contained in HR Advance are drafted with these aims in mind.
  • Ensure all contracts of employment, independent contractor agreements and workplace agreements clearly indicate that the policies and procedures of your business do not form part of the terms and conditions of these contracts and agreements. The HR Advance Engagement Letter, Contract of Employment, Independent Contractor Agreement, and Enterprise Agreement, all clearly indicate this.
  • Check that your policies and procedures are consistent with applicable legislation (eg WHS, discrimination, Federal and State industrial relations legislation etc) and any relevant industrial instruments (eg enterprise agreements modern awards, contracts of employment, etc) which set out the terms and conditions of your employees’ employment. To the extent that your policies and procedures are inconsistent, the terms of the applicable legislation and these industrial instruments will prevail. As such, it may be necessary to include a term to this effect in your policies and procedures.
  • Ensure you comply with your policies and procedures and administer your employment and other workplace agreements in accordance with their terms.
  • Review your policies and procedures at regular intervals to ensure they stay up to date with current laws and continue to meet your business needs. Employees should be notified of any amendments to the policies and procedures and be provided with further training if required.
  • Ensure employees are made aware of the policies and procedures which relate to their employment and are trained in relation to their obligations. This training should be provided during induction and refresher training provided every 1-2 years, or more regularly, depending on the requirements of your business and the regularity of breaches. Your employees’ comprehension and understanding of the training should be tested. You should keep a written record of the training undertaken by each employee and what this training involved. Testing records should also be kept.
  • Ensure that each employee signs an acknowledgment that they have been provided with a copy of, or access to, the particular policy and have had training in relation to it. An appropriate acknowledgment is included with the HR Advance policies.
  • Ensure your managers and supervisors are properly trained in your business’ policies and procedures so they can effectively administer them.
  • Ensure your managers and supervisors do administer the policies and procedures in a timely and efficient manner.

The policies provided in HR Advance are generic documents which may need to be amended to suit the specific requirements of your business. If you are uncertain about how to appropriately amend any of the policies to suit your business, you should get advice prior to doing so. This commentary is provided for guidance only and is not a substitute for legal advice. If in doubt, you should seek legal advice in relation to your specific circumstances.