Compliance comes with proactive training, not passive information
It is not sufficient for businesses to implement policies and procedures relating to workplace standards and behaviour without first providing education and training to employees on these policies and procedures. Such training should not just be self-directed or a “tick and flick” exercise.
More is required if an employer wants to rely on such training to discharge statutory obligations and to manage risk.
Over the last 12 months, regulation has created increased, direct, unavoidable and positive obligations for employers (and in some cases employees) regarding operational decisions and investment, personnel conduct, and culture.
As recently as October 2024, the Fair Work Commission (FWC) has brought specific criticism against HR staff for a "tick and flick" approach to notifying employees about policies and expectations. In Ramlan Abdul Samad v. Phosphate Resources Ltd T/A Christmas Island Phosphates [2024] FWC 2868 (16 October 2024), Deputy President O'Keeffe commented that toolbox meetings, leaving policies around the workplace, or providing access by other means is not sufficient to explain and promote an employer's expectation of behaviour, but is little more than a “tick and flick” exercise designed to demonstrate compliance, without achieving compliance. DP O'Keeffe also observed that where language might be a barrier, employers must take steps to overcome such barriers.
Based on this decision, employers must ensure appropriate training about policies and expectations. Thought must be given to how such policies should be communicated to address barriers to understanding. Records of training should be kept to demonstrate that employers have explained expectations in a way that should be reasonably understood.
Those obligations require employers to actively prevent risk, rather than just address them as they arise. These risks include:
An employer's human resource management system, including access to training, the content of training and the accessibility and retention of training records, is now an important part of not only your HR / Safety systems but your risk management and litigation defence strategy.
To demonstrate attempts to prevent, rather than respond to, such risks, employers should firstly understand the risk in their workplace. Risk assessments, payroll and safety system audits, and culture reviews may assist employers to understand any underlying risk, what your employees know about their obligations, and how managers respond to such risk.
It is then important to prepare training to reflect relevant obligations, the identified risks so as to ensure that the training is sufficient to ensure staff understand the expectations, their role in discharging statutory obligations, and the consequences of non-compliance.
Employers should also ensure that managers receive specific training about the proactive management of such risk. Providing “one-size-fits-all” training is unlikely to equip managers to effectively avoid risks materialising and may not assist them to identify warning signs to get ahead of emerging issues.
In addition, if employers roll out a policy to address risk or changing statutory obligations, they should also provide training in respect of that policy.
Online training is a useful tool to train lots of people quickly. However, it may not always be the most effective way of ensuring the content cuts through and is understood. Online evaluations can ensure that people “tune in,” but again where there are ways to game the system, online and remote training, or a “tick and flick” approach to training should not be the only option. Face-to-face training is important.
The Mental Awareness, Respect and Safety (MARS) Program Landmark Study: Insights from the Worker Survey and Interviews Report, prepared for the Western Australian Government and released in March 2024, is critical of “tick and flick” training in relation to harassment. It recommends that such training created a perception that employers did not take the risk seriously. It recommends that an important way to change attitudes around harassment is to ensure that managers are trained around appropriate and approachable management styles through emotional intelligence training.
Similarly, in the case of Thompson and Pelly v. Ventia Australia Pty Ltd, [2023] FWC 904, the FWC was critical of “tick and flick” training on safety, and on a pro forma approach to risk management policies.
It is also important to ensure that those providing training are experts in the content, they can answer questions, and they understand the employer's goal for the training. Training should be bespoke to your workplace and risk. Off-the-shelf products are unlikely to effectively manage the specific challenges in your workplace.
In this case, employees claimed that they were not trained in an employer's anti-harassment policies or given a clear expectation around social media communication. The FWC found that the employer's online training practices were “unnecessarily haphazard” and “appear to be along the lines of a self-taught, tick-and-flick approach”, which was “simply not appropriate,” particularly given that the training included self-directed slides to review and limited face-to-face instruction.
It is also important to keep accurate records of who attends training. Those records should only record attendance for those who stay for an entire session. The content of the training should also be retained to ensure that employers can demonstrate the expectations set and the consequences for non-compliance. Specific provisions around retention apply to the public sector.
Employers must also provide training during paid work time. Where the training relates to work, it is a requirement of many Modern Awards that such training is paid.
Based on the Report and these cases, employers not only need to consider how records around training are kept, but must also consider the content of training and how it is delivered.
All workers, including leaders, should undertake regular training, particularly about emerging workplace risk and changing statutory requirements. At a minimum, workplaces should ensure that all workers (including volunteers and contractors who work in your workplace) undertake WHS and respectful workplace conduct training each year. Other training specific to the work your workers do (including working with vulnerable people, managing confidential or private information or conflicts of interest, management of payroll or procurement processes) should also be provided regularly. Such training should differentiate between the different roles employees play in organisations. Managers need training on leadership and management, not only expectations and policies to effectively manage risk and discharge obligations.
Ahead of the new year, employers should take time to review existing training models, assess risk and compliance with new statutory obligations, and then determine how best to deliver training and manage that risk, whether that be tailored online programs, interactive and face-to-face training, or self-taught training options.
Where training on workplace policies, statutory obligations, or an employer's expectations amounts to little more than reading the policy or a “tick and flick” approach that lacks rigour, it is unlikely such training will demonstrate an employer has discharged their obligations to prevent harassment, bullying or other workplace risks, if such risks arise.
Employers seeking to minimise the risk that a former employee could successfully achieve reinstatement through an unfair dismissal application, they should carefully consider the recent comments made by the FWC in the context of their own process for implementing and applying their workplace policies and procedures and associated training.
Where workplace laws increasingly provide for positive and unavoidable duties for employers, we recommend that employers give thorough consideration to the content and quality of training, to how training material and attendance records are retained, and how people are trained, to manage future legal risks.
Megan Kavanagh is a partner and leader of the Employment & Safety Queensland team at Colin Biggars & Paisley in Brisbane.
