Employment Law

For employers…

The quality of the employer/employee relationship in an organisation can have a big impact on its performance and reputation. Employment law covers a range of matters – from recruiting, performance management, and dismissal; to workplace safety, discrimination, and harassment. To manage successfully, it is important for employers to understand their obligations under a range of laws and regulations, implement strategies to minimise risk, and anticipate when a potential problem requires advice from a professional.

For employees…

Because work is such a central and necessary part of many of our lives, when something goes wrong it can be financially and emotionally draining. Fortunately, the law in Australia protects us in our employment. The sources of these protections are federal and state/territory legislation, industrial instruments (including modern awards and enterprise agreements), and the common law. These laws overlap and do not apply to everyone, so it can be confusing to know which apply to you. This is where consulting an experienced lawyer can help, particularly if you believe you have been unfairly treated at work.

Fair Work

Most workers in Australia are protected by the National Workplace Relations System established under the Fair Work Act. Fair Work introduced the National Employment Standards (NES), eleven minimum standards that protect workers. Importantly, this national system also provides protection against unfair dismissal.

Some workers are not included in the national system. It does not apply if you are an independent contractor or sole trader, volunteering or completing an unpaid internship. You are not covered if you or your employer are a “non-constitutional entity” (including a trust or partnership). Finally, in most Australian states (including New South Wales) those who work for the state or local government do not have the protection of this system. However, even if you are not covered by Fair Work, you still have robust protections, and you should seek legal advice if you are facing a workplace issue.

Employment contracts

An employment contract is an agreement between an employer and employee. If well drafted, the contract provides clarity to both parties, puts them on the same page from the beginning of their relationship, and helps prevent future disputes.

An employment contract typically includes details of the employee and employer, the job title/description, employment type (full time, part time, or casual), commencement date (and end date, if applicable), hours of work, pay and allowances, leave, and notice requirements.

An employment contract cannot offer less than the minimum entitlements that are set out in employment legislation, even if the employee agrees to accept less generous terms. If the terms of an employment contract are inconsistent with legislation, the contract is invalid to the extent of the inconsistency.

Employers sometimes use standard form employment contracts or keep the same contracts for many years. However, laws change, organisational needs evolve, and there is not necessarily a one-size-fits-all approach to producing employment contracts. Given the changing nature of employment law in Australia, and an employer’s responsibility to comply with legislation, it is wise for employers to regularly review and engage an experienced lawyer to help with their employment contracts.

Unfair dismissal in the workplace

A dismissal is unfair under the Fair Work Act if it is “harsh, unjust, or unreasonable”, or not as a result of a genuine redundancy. A redundancy must be “genuine” and cannot be used as an alternative to termination. A role becomes redundant when there is no further need for anyone to perform the role.

A dismissal is generally found to be unfair unless it is made because of a valid, sound, and defensible reason. The reason must have been given to the employee at the time of termination.

If you have been dismissed from your workplace and believe that the circumstances of your termination were unfair, we recommend getting legal advice as soon as possible. You can ask the Fair Work Commission to determine if your dismissal was unfair, but you only have 21 days to apply. You must also have been with your employer for at least six months (or a year for small business employees).

If you are an employer, we recommend seeking legal advice if you are considering terminating a worker to ensure the appropriate steps are taken, and to minimise a potential unfair dismissal claim.

Discrimination and harassment

Discrimination occurs when a person is treated less favourably because of personal characteristics. Where adverse action is taken against an employee because of certain attributes, this might be unlawful subject to the general protections clauses of the Fair Work Act. Adverse action may include dismissing someone, not hiring someone, treating a person differently or offering employment on less favourable terms, among other actions. Such actions might also amount to a breach of various anti-discrimination laws at a state or federal level.

Employment law has changed considerably over the years, with successive governments overhauling legislation. While the Fair Work Act has remained fairly consistent more recently, many employers are unaware of the breadth of their obligations under this, and other legislation. Likewise, employees facing disciplinary proceedings or termination, or other workplace issues such as bullying and harassment may not know where they stand legally.

If you are facing a challenge in your employment, we can provide advice and help protect and enforce your workplace rights. For employers, we can provide proactive, strategic advice to help mitigate risk and minimise disputes in the workplace.

If you need assistance, contact one of our lawyers at [email protected] or call 02 6580 0199 for expert legal advice.