Australia: Workplace policies and procedures – are they really necessary?

Employers often provide employees with handbooks, policies and procedures which regulate workplace matters such as:

  • Work health and safety.
  • Anti-discrimination and equal employment opportunity.
  • Occupational Health and Safety.
  • Use of company property.
  • Use of social media.
  • Drug and alcohol use.
  • Employee performance management and discipline.

We understand that writing and reviewing policies and procedures takes time away from an employers' core business and so this task is always at the bottom of the to do list. If this is occurring in your business you should be warned that neglecting your policies and procedures can come at a considerable cost to your organisation.

Any organisation that employs staff can never be completely immune from the risk of a claim being made against them by an employee or former employee. In our experience however, policies and procedures will aid employers in managing workplace issues and are useful in defending claims such as general protections claims (e.g. adverse action) and unfair dismissal claims provided they are complied with.

All organisations who employ staff should have well documented policies and procedures, at the very least, for the following reasons:

  • Policies and procedures can fulfil employers' obligations and responsibilities under certain legislation such as work health and safety and discrimination legislation.
  • Policies and procedures provide employees with a clear understanding of what is expected of them.
  • Policies and procedures provide a fair, predictable and consistent approach to managing the workplace and workplace issues. Avoiding the need make it up as you go which in almost all cases will result in a problem.
  • Being able to refer to a set of policies and procedures can save time when inducting new employees and for training purposes.
  • Policies and procedures and a written employment agreement are valuable reference tools in managing workplace issues arising from employee misconduct or inappropriate behaviour.

Adverse Action and Policies and Procedures

The general protections provisions in the Fair Work Act 2009 (Cth) ("the Act") provide broad protections to employees and others in relation to adverse action taken by employers if that action is taken for a prohibited reason.

Adverse action broadly includes doing, threatening or organising any of the following:

  • An employer against an employee – dismissing them, injuring them in their employment, altering their position to their prejudice or discriminating between them and other employees.
  • Adverse action may also be taken outside the employment relationship by – prospective employers against prospective employees, principals against independent contractors and industrial associations against others.

Taking adverse action is not, on its own unlawful, however, it is unlawful to take adverse action because of a prescribed reason, such discrimination, industrial activities or asserting a workplace right.

Once an employee has established they have suffered adverse action and have alleged the action is within the scope of a prescribed ground, it is presumed that the employer's action was taken for that reason unless the employer proves otherwise.

Case Law

The matter of Construction, Forestry, Mining and Energy Union v Bengalla Mining Company Pty Limited [2013] FCA 267 demonstrates the important role policies can play in in the defence of a claim by an employee.

Facts of the matter

In this matter, the CFMEU, on behalf of Mr Dever, claimed that the employer, Bengalla, had taken adverse action against Mr Dever by issuing him with a warning letter "because of" Mr Dever's union membership, office or activities as a member of the Board of Management, Mining & Energy Division, Northern District of the CFMEU.

On three occasions, Mr Dever applied for unpaid leave to attend union meetings.

Bengalla had a Leave Policy which included the circumstances under which unpaid leave would be approved. It also provided that any absence not approved would be considered an unauthorised absence and that certain breaches of the policy would be dealt with under their performance management policy.

Upon receiving Mr Dever's first application for unpaid leave, Mr Blason, Mr Dever's Superintendent, reviewed the Leave Policy and interpreted it to mean that unpaid leave was only available if all other paid leave was exhausted. This interpretation of the Leave Policy was confirmed by Bengalla's Service Manager, Mr Lawler.

Mr Dever was advised by email that his application for unpaid leave had not been approved as it was outside the policy, and at the time of the requested leave he would have accrued 327.73 hours of annual leave.

Mr Dever then sent an email to his supervisors confirming his appointment with the CFMEU and resubmitted an application for unpaid leave. Mr Dever was advised again by Bengalla that they could not support the request for unpaid leave, but that it would support an application for annual leave in accordance with the Leave Policy.

The CFMEU then contacted Bengalla about the request for unpaid leave. Bengalla confirmed that the decision to refuse Mr Dever's application for unpaid leave was not associated with the reason for the leave request, being Mr Dever's involvement in a union activity. The letter noted that if Mr Dever failed to attend work when rostered to do so, his absence will be dealt with in accordance with the usual policies and procedures.

On 29 August 2012, Mr Dever did not attend work as rostered.

Shortly thereafter, a meeting was arranged with Mr Dever and his representative to discuss his absence.

Following the meeting and after consideration of the matters discussed, Bengalla issued Mr Dever with a written warning for his unauthorised absence.


The issue in the case was whether the warning letter was issued because of Mr Dever's union membership or involvement in union activities.

The CFMEU tried to establish its case by showing that Bengalla's managers knew that Mr Dever was going to be absent to engage in what was clearly a legitimate union activity.

Justice Katzmann found that Mr Dever knowingly failed to attend work when rostered to do so and took leave without adequate supporting documentation, in breach of the policy. Her Honour accepted Bengalla's case that Mr Dever's union membership status or activities had nothing to do with the decision to issue the written warning.

Her Honour dismissed the application.


This decision demonstrates how essential it is for employers in defending allegations of adverse action to ensure:

  • it has clear up to date policies in place;
  • that all employees are made aware of the existence of policies:
  • that managers/supervisors are trained on the interpretation and application of policies; and
  • that policies are enforced consistently and without discrimination.

Ensuring up to date policies and procedures are in place and enforced will aid employers in any defence to a claim for adverse action.

The authors of this article are experts in drafting workplace policies and procedures and can provide guidance and advice on appropriate policies and procedures for your workplace.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Veronica Lee
Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions