Employment law is a surprisingly complex area of law. It covers a range of workplace issues and will likely affect most people at some stage of their lives. Traditional workplaces have changed dramatically over the past few years, and it can be challenging for both employers and employees to keep up with the many laws and regulations effecting their responsibilities and entitlements.
We help employers implement strategies to effectively manage their workplaces and proactively prevent or minimise workplace disputes. We also provide guidance and representation to employees who find themselves confronting issues such as termination, dismissal, bullying or harassment.
Employment law is administered by a myriad of Federal, State and Territory laws. An employer can be subject to Federal, State and Territory laws or different laws from different States and Territories may apply simultaneously. Further, different statutory Awards can apply to the same business. Often there are parties outside the employer and the employee that have a vested interest in the employment relationship. These include governments bodies and unions.
Navigating these laws to achieve a beneficial outcome requires an understanding of the employer’s business and the relevant laws and parties’ interests.
Having a well-drafted employment contract is essential to provide clarity, manage expectations, to set the foundations of the employment relationship from the outset and to comply with the relevant Award. Sometimes more that one Award may apply.
Termination of employment may occur through voluntary resignation by an employee or dismissal by the employer on the grounds of redundancy or for other reasons. Generally, employees must be provided with written notice when their termination is instigated by the employer, unless the employee’s termination is due to serious misconduct. The notice period will depend on the length of service of the employee. You might consider getting legal advice if you propose terminating an employee.
Under Federal (and some State or Territory laws), an unfair dismissal is one which is harsh, unjust, or unreasonable, or not a ‘genuine redundancy’. Generally, employees are protected from unfair dismissal if they have been employed for at least 6 months (or 12 months for a small business) and their employment is covered by an award or enterprise agreement, or their earnings are less than the high-income threshold. Casual employees may also be protected in certain circumstances.
There are strict time limits (usually 21 days) for bringing an unfair dismissal claim, so if you think your dismissal was unfair, it is important to get legal advice quickly.
If one of your employees has brought a claim for unfair dismissal, we recommend you retain legal representation to help manage and deal with the claim.
Bringing or defending a general protections claim can be complex and we recommend seeking legal advice in such circumstances.
Broadly, the general protections provisions of the Fair Work Act (and some States’ and Territories laws) are intended to protect a person’s workplace rights, freedom of association, and provide protection from discrimination in the workplace. Employers must not take any ‘adverse action’ against an employee because of these workplace rights, or because an employee has exercised or intends to exercise a workplace right. Adverse action may include:
- dismissing an employee
- injuring an employee in their employment
- changing an employee’s position to their disadvantage
- treating an employee differently to other employees
Redundancy occurs when an employer no longer requires the employee’s job to be done by any other person. Subject to the employee’s length of service and type and conditions of employment, the employee may be entitled to redundancy pay.
Typically, redundancy occurs when a business needs to restructure or downsize due to economic decline, and/or new technology is introduced to improve efficiency resulting in fewer employees being required. Redundancies may also occur when a business shuts down, transfers ownership, or becomes insolvent.
If a purported redundancy is not genuine, an employer could face an unfair dismissal claim.
Employee or contractor?
The distinction between an employee and a contractor has been tested frequently in various cases and is even more relevant as we move further away from traditional forms of employment.
If you are considering engaging workers as ‘contractors’, you should think carefully about the arrangements to determine whether your workers are truly independent contractors or employees. Failing to determine the relationship properly at the outset can result in an employer being liable for crippling back-pay of employee entitlements. We can help you decide on the relevant status of the relationship to avoid breaching the law and risking claims and penalties. We can also assist with the drafting of independent contractor agreements.
Employees generally have PAYG tax withheld, and superannuation paid by the employer. Contractors generally look after their own tax obligations. However, it is rarely as simple as that. The entirety of the relationship must be analysed to determine the correct status, which might consider the following:
- the degree of control the employer has over the worker
- whether the worker works exclusively for the employer or can sub-contract
- the provision of a uniform, business cards, etc. from the employer
- whether the worker undertakes work personally or is free to delegate to others
- the method of payment for the work performed – whether at an hourly rate or on completion of a specific project
- the responsibility for acquisition and maintenance of equipment
- the allocation of risk and profit associated with the work
- the degree of integration the worker has with the entity for which it works
An employer cannot restrain an employee from soliciting the employer’s customers or clients or competing with the employer unless the employment contract contains a carefully drafted restraint clause. A poorly drafted restraint clause will fail. The restraint clause should be tailored to the specific employment circumstances. We can assist with drafting such restraint clauses.
Managing risk in the workplace
Employers may not be expert in every aspect of employment law. They should, however, understand their primary obligations and anticipate when a potential problem requires the advice of an expert.
Education and information are key to minimising workplace disputes. Employers should understand and comply with their workplace responsibilities and ensure that their employees are educated and encouraged to contribute towards a safe work environment. Amongst other things, this requires recognising the types of conduct (whether intentional or otherwise) that could breach a workplace law and proactively identifying and managing at-risk behaviour through well-structured policies and systems.