Short Sleeves? No, Short Sighted

Kayla Scott

17 May 2021

Topics

  • Business Law
  • Business services
  • Employment Law

How changing your workplace policy affects everyone

Policies are an integral part of any workplace as they help strengthen and clarify the standards that are expected of employees. Policies also help employers manage staff more effectively as they often define what is, and is not, acceptable in the workplace. Workplace policies can address many aspects of the workplace and employment relationship, such as dress standard, social media use and staff behaviour.

But what is the right way to go about making changes to workplace policies?

Issues when employees aren’t consulted

Recently, The Fair Work Commission (Commission) has handed down a less favourable decision for the Home Affairs Department (the Department) in relation to workplace policies. The Department attempted to introduce three new workplace policies that address:

  • appearance and dress standards, extending the requirement for staff to maintain a neat and tidy appearance while also working from home, including not wearing sleeveless tops, dresses, and blouses
  • the use of social media
  • how to deal with vulnerable children.

The Commission found that the Department failed to consult with its employees or union representatives as required by the Department’s workplace agreement. That agreement specified that the Department must give its employees at least two weeks to comment on new policies, procedures and guidelines.

Changing workplace polices

Changing workplace policies is sometimes triggered by a change in law or by changes in the industry. It can also address issues or anticipated issues in the workplace. Developing or changing workplace policies should involve planning and research into any applicable laws, and consideration of the potential impact on employees.

Key considerations for employers in developing or changing policies may be:

  • ensuring that the new policy is written so it is simple and easy to follow (for the employer and employees)
  • ensuring that the policy aligns with business objectives and goals
  • ensuring that the policy is compliant with the law
  • determining whether any applicable award or enterprise agreement requires consultation with employees (and union representatives if applicable) − as explained in more detail below.

When is consultation with staff required?

The minimum employment conditions for most workplaces are governed by an applicable modern award for that industry, or an enterprise agreement (an agreement put in place by an employer and its employees that applies instead of the award, subject to approval by the Commission).

Modern awards

Every modern award contains a standard consultation clause. This requires employers to consult with employees and their representatives if they intend to make significant changes at the workplace. Consultation clauses generally require the employer to:

  • notify any employees who might be affected by the proposed changes, and their representatives
  • discuss the proposed changes with the affected employees and any representatives as soon as possible after a decision is made
  • provide employees and any representatives with written information about the changes and their potential effects on employees, and any measures the employer will put in place to prevent or reduce any adverse effects
  • give prompt consideration to any matters raised by the employees and their representatives.

While an employer must consider the matters raised by the employees, awards do not mandate that an employer must have the consent of employees or their representatives to make the proposed changes.

Enterprise agreements

The Fair Work Act 2009 requires all enterprise agreements to contain a consultation term that:

  • requires the employer to consult with employees about any major workplace changes or changes to their regular roster or ordinary hours of work
  • allows employees to be represented during the consultation (for example, by an elected employee or a representative from a union).

Some enterprise agreements, such as the agreement in place in the Department, may go beyond this and require consultation in a broader set of circumstances.

We recommend reviewing your modern awards, enterprise agreements and legislation before making any substantial changes in your workplace to ensure you are fulfilling your obligations as an employer.

Discussing workplace issues can be difficult for both employers and employees, especially when emotions are involved. However, not communicating at all can result in issues and unfortunate outcomes for your business. It is important that employees be consulted about policies that may impact them.

How can we help?

Should you have any questions regarding changing your workplace policies, or as an employee who has not been consulted before changes were implemented, please do not hesitate to contact our Employment Law team on 02 6285 8000 or by email.