Employment Law

The introduction of the Fair Work Act in 2008 was yet another milestone in Australia’s ever changing history of employment law. It changed the previous law concerning employment agreements and, in many respects, tightened the labour market.

Many businesses are still falling into the pitfalls of applying the old rules and our job is to assist in the implementation of Fair Work Australia laws to adequately provide an effective workforce system suited to the requirements of your business.

Our team is skilled in preparing policy documents, employment agreements, enterprise agreements and representing employers in dealing with Fair Work Australia, in relation to claims for unlawful dismissal and applications for other relief by workers.

• Advice on the application and interpretation of Awards;
  

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  Since 1 January 2010, the introduction of modern awards has meant that there is one set of minimum conditions provided in one award to apply to employers and employees in the same industries or occupations.
  
  We can help you to determine which award applies to your workplace (and in some cases there could be more than one applicable award). We will assist you with interpreting the provisions so that, whether you are an employer or employee, you have a sound understanding of the minimum conditions of employment applying to your workplace.
  
  
• Advice on, and drafting, individual employment contracts and collective agreements;
  

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  The Fair Work Act provides a rigid framework for the types and forms of employment contracts that businesses can enter into with their employees to ensure that employers cannot contract out of the minimum employment standards created by the applicable award and National Employment Standards. There are also strict provisions to prevent businesses from entering into ‘sham’ contractor arrangements to avoid paying employees their full entitlements.
  
  We are experienced in drafting practical contracts to implement those employment conditions suitable for your business while ensuring compliance with the Fair Work Act. We are also experienced in assisting businesses to negotiate collective agreements with employees and unions, and drafting the final agreement to ensure that your interests are protected.
  
  
• Advice on, and drafting, policies and procedures manuals;
  

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  Generally, policies and procedures do not form part of employment contracts. It is important that an employer’s policies and procedures manual clearly sets out the standards and expectations that are applied to employees, and what conduct is not acceptable. A clearly drafted manual will result in both parties having the same understanding of the policies and procedures of the business, and prevent misunderstandings that could result in unfair dismissal claims or other industrial action.
  
  
• Advice on industrial action and conduct by unions;
  

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  The Right of Entry provisions of the FWA have come under scrutiny on a number of occasion on behalf of our clients. We can advise on the appropriate steps to to protect your business’ administrative records while at the same time complying with the legislation.
  
  
• Termination of employment and redundancy;
  

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  Termination of any employee, whether they are a salary worker on award rates of pay, or an executive on a substantial benefits under a n employment contact, must be handled carefully. We can advise on appropriate procedures including compliance with the Fair dismissal Code to assist businesses .
  
  
• Advice on Fair Work Australia, Fair Work Ombudsman, Australian Building and Construction Commission etc;
  

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  We have assisted clients in dealing with investigations by, or defending actions from, Fair Work Australia, the Fair Work Ombudsmen and the Australian Building and Construction Commission (ABCC).
  
  
• Managing staff underperformance.
  

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  Management of staff performance can be a source of conflict if consistent benchmarks and performance measurement systems are not in place. Our experience in the fields of General Applications and Unfair Dismissal Applications provide invaluable knowledge on the pitfalls, and best practices to avoid disputation in this area. The proper drafting of policy procedures become a fundamental issue for managers in the areas.
  
  

• I am not certain which Modern Award applies to my business?
  

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  We can assist you in clarifying the award applying to you, or if there is more than one award that applies (depending on your industry).
  
  
• Do I now have to start paying my employees parental leave due to the new laws that have been introduced?
  

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  No, your business does not have to provide paid parental leave arrangements for your staff. However, from 1 July 2011 your business will have to help facilitate the new government funded paid parental leave scheme – that is, if you have a staff member who commences unpaid parental leave after 1 July 2011, you will have to receive payments from the government and pass these onto him or her.
  
  
• I am a small business, do the unfair dismissal laws apply to me?
  

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  If your business employs less than 15 people, then the Fair Dismissal Code applies to you. If you follow the Code when dismissing an employee, the dismissal will be deemed to be fair. As employees of a small business, your employees cannot make a claim for unfair dismissal within the first 12 months of their employment.
  
  
• What are the minimum employment conditions that I need to provide my employees with?
  

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  The Fair Work Act 2009 sets out 10 minimum standards of employment, called the National Employment Standards (NES). These are the minimum standards for maximum hours of work, flexible working arrangements, leave (parental, annual, personal, community service & long service leave), public holidays and notice of termination and redundancy pay. You must also provide a Fair Work Statement to each new employee, setting out these conditions and other information.
  
  
• What do I need to do if I want to pay my employees differently from the award wage?
  

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  You are able to do this if the employment conditions you want to provide for your employees result in your employees being better off than if they were paid under the award. You need to have an individual flexibility arrangement with each of your employees, which is an agreement which sets out the conditions of employment, and specifically states how the employee is “better off overall” under the arrangement than they would be under the award.
  
  

• I have just lost my job – how do I know if the dismissal was fair or unfair?
  

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  Fair Work Australia considers a number of factors in deciding whether a dismissal is harsh, unjust or unreasonable, including whether or not there is a valid reason relating to your conduct and whether you were told about this reason and given a chance to respond. Whether or not the dismissal will be considered unfair will depend on a range of circumstances, including the size of your employer.
  
  
• Should my employer be paying me annual leave and sick leave?
  

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  This depends the type of your employment – if you are a full-time or part-time employee then you should be receiving these benefits. If you are employed on a casual basis, or as an independent contractor, then your employer is not required to provide this type of leave for you.