Employment Law
Employment law governs the relationship between Employers and Employees and covers a range of workplace matters. While Employers may not be experts across all the intricacies of employment law, they must understand their key obligations and be able to anticipate when a potential problem requires the advice of an expert. Similarly, Employees navigating issues such as termination and redundancy, should ensure their rights are protected by seeking legal guidance. We provide a range of employment and industrial law services for Employers and Employees, including:
- Preparing and reviewing employment contracts
- Reviewing and advising on policies and procedures
- Protecting confidential information, intellectual property, restraint of trade
- Advice and representation regarding termination of employment claims including unfair dismissal and redundancy
- Industrial relations, industrial disputes, and advocacy
- Advising on employee entitlements and employer obligations
- Arrangements with independent contractors to meet business requirements and assessing the effect of the Independent Contractors Act 2006
- Defending workplace prosecutions
- Representation as counsel before the Federal Court, Federal Magistrates Court, Supreme Court, Magistrates Court, Fair Work Australia, Tasmanian Industrial Commission, Anti Discrimination Tribunal and Human Rights and Equal Opportunity Commission
Employment Contracts
A well-drafted employment contract provides clarity and can help manage the Employer/Employee relationship and minimise the risk of future disputes. While employment contracts are not ‘one size fits all’ they must be well structured and include key terms.
At a minimum, an employment contract should include details of the employee’s duties, hours of work, pay, and leave entitlements, as well as information about termination. Ideally, it should also include any specific terms or conditions that are important to your business, such as confidentiality agreements, non-compete clauses, or intellectual property rights.
It is vital that the pay, conditions, and entitlements contained in the employment agreement comply with the National Employment Standards (NES). This includes provisions for annual leave, sick leave, parental leave, and other types of leave. An employer cannot contract out of the NES – if the agreement offers less than the minimum entitlements set out in the NES, your agreement will not be enforceable in relation to those parts.
Unfair Dismissal
Under the Fair Work Act 2009, an unfair dismissal is one which is harsh, unjust, or unreasonable, or not due to a genuine redundancy (where the employer no longer needs the role to be performed). There are strict time limits within which to bring a claim for unfair dismissal so Employees who believe their dismissal was unfair should seek legal advice as soon as possible. Similarly, an Employer facing a claim or potential claim for unfair dismissal should obtain immediate legal advice on how to manage the situation quickly and effectively.
Adverse Action and Discrimination
Taking adverse action against an Employee based on a discriminatory reason is unlawful subject to the general protections clauses of the Fair Work Act. Examples of adverse action may include dismissing an Employee, not hiring someone, treating a person differently or offering employment on less favourable terms. Discrimination occurs when a person is treated less favourably because of certain personal characteristics such as race, sex, age, and disability. Such actions might also amount to a breach of various anti-discrimination laws at a state or federal level.
We can help if you are facing or need assistance with an adverse action or discrimination claim.
Managing Risk
Employers have an obligation to manage the health and safety of Employees in the workplace and should take proactive measures to protect employees from injury or harm including bullying, discrimination, and harassment.
Over the years, employment law has changed dramatically, with successive governments overhauling legislation. Understanding your responsibilities as an Employer under the Fair Work Act and other legislation is key to complying with your obligations and managing risk.
Potential conflict can be minimised by implementing systems to deal with all workplace matters, from recruitment to performance management, disciplinary procedures, and termination. Policies and codes of conduct that address issues such as bullying and harassment can be invaluable in showing a Commission or Court that an organisation has made genuine efforts to enforce the required conduct expected of its Employees. Policies should be supported by fair processes and brought to the attention of all Employees.
Given the penalties that apply for breaching certain employment laws, and the disruption caused through disharmony in the workplace, getting advice from an experienced employment lawyer can be instrumental in mitigating potential problems.
Industrial and Workplace Disputes
Just like in other areas of life, it is not uncommon for disputes to arise in the workplace. Disputes arise when people disagree about an outcome and the matter remains unresolved. Most of the time, a dispute can be resolved informally. The process for resolving more serious disputes may depend on the terms of the award or enterprise agreement that covers the employment. Generally, awards require that parties first attempt to resolve a dispute within the workplace and, if the parties cannot reach a negotiated outcome, a dispute may be referred to the Fair Work Commission.
All enterprise agreements, prior to being approved by the Fair Work Commission, must have a procedure for resolving disputes, including allowing an employee to have a representative.
Our principal has extensive experience in employment law and regularly appears as counsel in various courts and industrial tribunals including the Fair Work Commission. If you need assistance with an employment matter or a workplace dispute, contact [email protected] or call 03 6331 5627.