Developing a Workplace Policy

A workplace policy helps you to define how you will run your organisations day to day operations and the behaviour that is acceptable for employees and management. It also states what will happen if a worker does not adhere to the policies.

Policies help to guide businesses and assure that they are complying with legislation, regulation and codes of practice. When developing a policy it is important that it is easy to comprehend - written in plain English with reasonable expectations and that everyone understands the consequences of not complying.

A good workplace policy should provide a statement of purpose and guidelines on how to achieve this purpose. Research what a good policy looks like and how other businesses have done their workplace policies to see if you can use some of their information in your workplace policies.

Here are some questions to help you to be sure that you have not left anything out of you workplace policy:

1. What is the purpose of the policy?
2. What is the range of the policy? What activities are included in it and who does it apply to?
3. Are there any related policies or procedures that exist or are being developed? 
4. What is considered acceptable behaviour under the policy? Can you include any examples?
5. What behaviour is considered unacceptable under the policy?
6. Is any behaviour relating to the policy against the law? If it is make sure to reference any related legislation and make it known that legal action could be taken against any employee who participates in this kind of behaviour.
7. What disciplinary action or performance management procedures will be enforced if an employee breaches the policy? A Disciplinary Policy is very important as it outlines what processes an employer will take in issuing a formal warning to staff members, or in terminating employment. For example, if you have a policy relating to punctuality, you may need to include a procedure outlining what to do if the employee is going to be late.
8. Who should be contacted by employees with enquiries or complaints regarding the policy?
9. Who has authorised the development of the policy?
10. Are there any circumstances in which it will not be possible to follow the policy – if so, how will you respond? 

It is essential to have the co-operation of your committee, managers and executives when making any workplace policy. If corrective action must be taken, everyone should agree on what will happen next.

Who is considered the Primary Carer for the Purpose of Parental Leave?

The primary carer of an adoptive or newborn child under 18 is eligible for 18 weeks of paid leave under the Paid Parental Leave scheme. Partners or secondary carers are eligible for a shorter amount of leave, 2 weeks for working dads and partners under the Paid Parental Leave scheme.

Defining who the primary carer is not necessarily clear-cut. The Fair Work Commission have recently made it clearer to define when an employee will be considered the primary carer.

According to the Fair Work Commission, a newborn baby’s mother must be deemed incapable of providing primary care after the child’s birth for the partner to be eligible to claim primary carer status. Looking after the mother after birth does not make a partner a primary carer.

In a recent case, two male employees claimed they took on the primary carer role after their partners delivered their baby’s via caesarean. Due to the fact that the mothers could not bend to lift the baby up or drive a car, they claimed that they were entitled to Paid Parental Leave as they were the primary carers.

DP Asbury reviewed the employees' statutory declaration (a requirement of the enterprise agreement) and medical certificates and concluded the fathers were not acting as primary carers for their babies but were acting as carers for their partners. Therefore they were not entitled to Paid Parental Leave as primary carers and the employees’ personal leave was the correct leave to use in this occurrence.

However the Fair Work Commission could not necessarily rule out certain medical procedures from being accepted as adequate proof of incapacity. DP Asbury found that the medical condition of the mother “must be such that she is unable to provide primary care for the child” for her partner to be able to make a claim for primary carer status.

A partner is able to claim primary carer status under exceptional circumstances. If the birth mother or the initial primary carer of an adopted child is unable to care for the child, a partner or another person may claim Parental Leave Pay.

The person claiming under exceptional circumstances would need to meet the eligibility criteria and presume to be caring for the child for at least a period of 26 weeks. The change of care must take place within 52 weeks of the child’s birth or adoption.

A mother returning to work full time or being incapable of caring for the baby due to a serious medical condition would allow for a partner to claim paid parental leave as they would be considered primary carer.

In this particular case, a caesarean was not considered a sufficient medical condition.

Is Unpaid Work Lawful?

Some unpaid work arrangements are considered lawful while others are not. It depends on the nature of the agreement whether an employee should be entitled to the minimum pay rate for the work they are doing as well as other minimum employment entitlements.

For an unpaid work arrangement to be lawful under the Fair Work Act 2009 it depends on if an employment relationship exists or the arrangement involves vocational placement.

If an unpaid work arrangement is not a vocational placement, the arrangement will only be legal if there is no employment relationship in place... If there is an existing employment relationship, the person is in fact actually an employee and entitled to a minimum wage, National Employment Standards and the terms of any applicable award or enterprise agreement.

When determining if a person is an employee each case must be judged on its own facts. There is no set definition of employment under the Fair Work Act. It is just a matter of figuring out if the arrangement to work involves an employment contract. This does not need to be a written contract, it may be a verbal agreement.

For an employment contract to exist it must be well defined that:

• Both parties intend to create a legally binding contract
• There is a commitment to perform work for the benefit of the business or organisation.
• The person performing work will gain something in return - this may just be experience or training.
• The person is not performing the work as a part of their own business.

When determining if an employment relationship does indeed exist it can be useful to consider the nature of the arrangement and not how the parties have chosen to describe it. These factors should be taken into consideration.

• Was the purpose of the arrangement to provide a learning experience or was it to get the person to assist with the everyday operation of the business? If the arrangement involves productive work instead of just training and skill development, it is more than likely an employment relationship exists.
• How long is the arrangement for? The longer the period of arrangement, the higher the chances of there being an employment relationship present. However short engagements can also be considered as having an employment relationship existing.
• How important is the arrangement to the business? The more essential the work is to the running of the business, the more likely it is that it’s an existing employment relationship.
• Who is benefitting from the relationship? The person who benefits the most in a genuine unpaid work arrangement should be the person undertaking the role.

A vocational placement is a formal work experience arrangement that is part of an education or training course. Vocational placement that meet the definition under the Fair Work Act are lawfully unpaid.