“Custom & practice” no barrier to change


Posted By on 20/04/16 at 3:38 PM

One for the back pocket when faced with an argument about “custom and practice” as a barrier to change!

If you only read one case this year as we drive our change programs then this is it! (Ok, yes a big call, I’d add in cases like Burke v Suncorp and Jayco Caravans on mental health as well, but this one is just so important because of its urban myth busting properties…!)

It is a decision by DP Gostencnik of the Fair Work Commission on that hoary old chestnut which is always thrown across the table at you – “You can’t change this – it has always been this way. It is [standby for awe inspiring magic words…]…CUSTOM AND PRACTICE!” [NB: sorry to shout…but felt like it was a better way to make the point…! 😉 ]

The issue in this case concerned Siemens making employees pay for e-tag/tolls when using business vehicles for private purposes. The Union argued that the employer couldn’t. But the employer argued (and the FWC agreed) that they can.

The reason that the case is such a great read is that it applies to ALL our people: ie whether they are on enterprise agreements or common law contracts, the analysis is the same – “custom and practice” is just complete tosh legally unless it can reach the (very high and virtually insurmountable) bar of being an implied term.  Most importantly, just because management has not properly enforced its policies in the past (unfortunately just a reality we all face at times) this does not mean it has “acquiesced” to the custom and practice so as to make it an actual enforceable entitlement forever more.

Fundamentally, while we might (from an HR perspective) still think changing longstanding practices could be a mistake from an engagement perspective (and many of us could even take many and different positions from each other when confronted with our own circumstances as to where the business is at and what else we are trying to do), the key is to know that we still have choice – and “custom and practice”, while often bandied about, is not necessarily what it is made out to be.

Chris Gianatti

Chris Gianatti Director

Chris worked for a number of years with Corrs before moving in-house to Telstra as HR Legal Counsel for the “Factory” (covering Telstra’s back of house operations including the field... Read More