In today’s frequently changing and complex commercial environment it is becoming increasingly important for businesses to seek expert legal advice on the nature of employment law. A positive workplace culture and a business that values its workforce will provide for an environment of future growth and increased productivity.

Our experienced team at Sladen Legal has the skills, knowledge and expertise needed to navigate you and your business through the complexities of employment law. The Employment Law team is focused on working closely with our clients to ensure they understand their rights and obligations as an employer and to provide targeted strategic assistance across all aspects of the employment relationship to: 

• minimise and manage the risk of disputes; 

• provide assistance and guidance for employee claims; and 

• manage workplace risks to employee health and safety. 

At Sladen Legal, our primary focus is our clients and ensuring that we provide all the tools necessary for businesses to confidently manage their workforce and any issues that may arise. Our experienced Employment law team prides itself on providing the most relevant and comprehensive advice and services to our clients to assist in the most commercial and practical way possible.

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employment@sladen.com.au

+61 3 9611 0150

The Employment Relationship

In the dynamic and ever changing employment environment, it is crucial that businesses have up to date documentation that is both relevant to their workforce and legally compliant. Additionally, the laws surrounding employment are constantly evolving, often making it difficult for employers to stay up to date with the latest changes in employment law.

Regardless of the type of workers your business has, our team can assist you to ensure the business is compliant with the relevant workplace laws.  

Our team can provide you with end-to-end assistance with all aspects of the employment relationship, beginning with recruitment right through to termination. Our team will assist you to navigate the intricacies of the employment relationship, ensuring that the best possible outcome is obtained for both the employer and employee. 

As part of our comprehensive service for all aspects of the employment relationship, the Employment, Industrial Relations and Work Health & Safety team can assist with: 

• reviewing and advising on existing employment contracts and service agreements; 

• amending, drafting and tailoring employment contracts for employees; 

• preparing template agreements to be used across various types of employment in an organisation; 

• developing strategies to exit an employee from your business; 

• advising on post-employment obligations; and 

• preparing restraints, confidentiality and intellectual property protection following termination of employment.  

Courts are becoming increasingly more willing to enforce appropriately prepared post-employment restraints, placing additional requirements on employees to comply with their obligations following the end of their employment. Additionally, it is essential that employers ensure their confidential information and intellectual property is protected following an employee’s exit from the business. Our team has extensive experience in drafting effective provisions which operate following the termination of employment to ensure that businesses can enforce post-employment obligations against former employees and, in some situations, their new employers.  

Our team will provide clients with practical commercial guidance on the options available to them where restraints have been breached, including a robust cost benefit analysis before proceeding to litigation to enforce rights. 

Policy Development

It is important for businesses to maintain a suite of internal policies and procedures to ensure employees and management staff are aware of their obligations in the workplace at all times. Additionally, an extensive suite of documents provides management staff with a framework for managing challenging workplace scenarios, such as when managing employee performance and conduct.

To ensure your business can adequately respond to any matter that may arise, our team can assist to develop a range of policies, including: 

In addition to developing internal policies and procedures, our team at Sladen Legal can perform an audit of the current policy documents maintained by the business to ensure commercial risks are minimised and your business is protected. With the continuously changing nature of employment relations, through legislative amendments, updates and decisions of Court, Tribunals and the Fair Work Commission, our internal policy audit can alleviate your business’ concerns by ensuring the highest level of compliance is maintained.  

Workplace Training

In addition to preparing workplace policies, our team has extensive experience in conducting workplace training to inform employees of their obligations under both business policies and relevant State and Federal legislation.

Importantly, Courts and Tribunals are often quick to label workplace policies as aspirational where employees are required only to sign internal policies and procedures without understanding the true nature of the attached obligations.

Our team can work closely with managers and supervisors to understand the commercial context of your business operations and provide training tailored to specific workplace issues and the needs of your business. The presentations are designed to inform employees of their obligations under the policies while in the workplace. All presentations are tailored to the individual workplace, with each individual presentation conducted in an interactive and engaging manner.

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Performance & Conduct Management

Dealing with underperforming staff has become increasingly fraught with legal risk in recent years. It is sensible for a business to obtain professional advice at the onset of performance management concerns about an employee. Early intervention and appropriate management of an employee’s performance significantly reduces the risk of future workers’ compensation claims, workplace bullying disputes and any subsequent disputes that may arise.  

Our team at Sladen Legal has extensive experience in assisting clients to ensure that their processes are sound, fair and legally compliant. By providing timely professional advice on issues such as performance management, ill and injured employees and termination processes, our team can provide practical commercial assistance with: 

• safely exiting an employee from your business; 

• advising on legal obligations, options and strategies as the matter unfolds; 

• drafting and settling letters; and 

• scripting discussions for use with employees in performance management and disciplinary interviews. 

In addition to assisting with performance management, our team can provide advice regarding employee entitlements on termination and offer representation to employers where a claim is made following termination. For more information see the below section on Unfair Dismissal and Adverse Action.

Workplace Investigations

Our team understands that each business is unique and a one-size-fits-all approach may not achieve a practical business outcome that is appropriate for individual workplace environments.

It is for this reason that our team develops tailored and appropriate Human Resources policies for our clients, addressing the intricacies and complexities of commercial reality. Our policies are designed to give managers and Human Resources professionals the tools to deal with issues within the business as they arise, ensuring that a plan is in place to appropriately manage matters in a timely and effective manner.

Our team has experience in undertaking workplace investigations, with scenarios ranging from investigating complaints of harassment (including sexual harassment), conflicts of interest, workplace bullying and improper management practices. Our team can provide an impartial assessment of workplace issues, particularly in situations where a conflict of interest may arise should an investigation be undertaken internally. Our team operates with the upmost integrity at all times, ensuring to provide both practical guidance to manage the issue and an understanding of external factors which may have led to the conflict. Practical solutions to reduce the risk of further conflict occurring are also able to be devised.

Unfair Dismissal & General Protections

With employees becoming increasingly aware of their employment rights, it is becoming progressively more important for businesses to seek legal advice before implementing decisions that may impact upon such rights. Our team has extensive experience representing employers that are subject to unfair dismissal or general protections claims.

Dismissal of an employee may be considered unfair where: 

• an employee has been dismissed; 

• the dismissal was harsh, unjust or unreasonable; 

• the dismissal was not a case of a genuine redundancy; and 

• the dismissal was not consistent with the Small Business Fair Dismissal Code, where the employer is a small business. 

Unfair dismissal can require a complex analysis of the employment relationship and the scenario that led to the dismissal of an employee. Our team can help you understand the Fair Work Commission processes, including preparing the required documentation and providing representation at conferences and hearings. Our team will provide you with high quality commercial advice on the best course of action for your business to follow.  

Alternatively, an employee can make a general protections application where the employee believes the employer has taken adverse action based on the employee’s exercise of or intention to exercise a workplace right, engaging in industrial activities or based on a protected attribute. Adverse action taken by an employer can include: 

• dismissal of an employee; 

• failing to provide an employee with their legal entitlements; 

• unfairly changing job requirements or intentionally disadvantaging the employee; 

• preferential treatment to certain employees; or 

• refusal to hire a prospective employee on the basis of a protected attribute. 

Termination of employment often requires significant planning and structuring to ensure the employer’s interests are protected and to reduce the risk of an unfair dismissal or general protections claim. In the event that your business is required to respond to an unfair dismissal or general protections claim, our experienced team can prepare a response to the claim and represent your business before the Fair Work Commission to achieve the best outcome for your business.

Award Compliance

Modern Awards provide employees with the minimum terms and conditions of their employment, in addition to the National Employment Standards. All employees in the national workplace relations system are covered by a Modern Award, with awards covering employees in 122 different industries.  

The Fair Work Commission undertakes a 4-yearly review of Awards to ensure the minimum employment standards remain consistent with the legislated employment requirements. 

Award compliance is crucial for businesses, as mistakes can lead to intervention by the Fair Work Ombudsman. The Fair Work Ombudsman has a broad focus, including prosecution of companies and individuals involved in a dispute. Where the Fair Work Ombudsman becomes involved in an Award compliance dispute, our experienced team can assist businesses to navigate Fair Work Ombudsman audits or investigations, while also managing and minimising the risk of a Fair Work Ombudsman prosecution.

Our team understands the intricacies and complexities of the Award system and offers businesses a full Award compliance review. Our experienced team frequently assists clients to identify the relevant Award, classify employees and advise on the correct interpretation of Award terms and their impact on business operations.

Enterprise Agreements & Industrial Disputes

While Modern Awards apply to an entire industry to set a minimum safety net for remuneration and employment conditions, many businesses enter into private negotiations either with its employees or employee representatives, to reach an agreement on terms and conditions that are exclusive to that particular enterprise.

Enterprise agreements can be an effective tool for employers and employees to agree upon terms that are more beneficial than the relevant Modern Award, however, the enterprise bargaining process is often incredibly complex, uncertain and confusing.  

Our experienced team understands the complex nature of enterprise bargaining and can represent and advise clients on all aspects of enterprise agreement making, including: 

• providing legal, operational and commercial advice on agreement terms; 

• issuing a Notice of Representational Rights; 

• drafting enterprise agreements; 

• preparing amendments to existing enterprise agreements; 

• negotiating with employees, unions and other bargaining representatives; 

• advising on industrial action, including preparing industrial action contingency plans; 

• facilitating on an agreement’s progress through the Fair Work Commission, including: 

  • drafting approval documents; and 

  • preparing undertakings where required; and

• assisting with the transition to a new agreement.  

Restructuring & Redundancies

More than ever, businesses are looking to restructure all or part of their workforce to obtain productivity gains while lowering operating costs to provide the most effective and efficient commercial outcome. Prior to restructuring a workforce, there are several important factors to consider to minimise any potential risks to the business, including any adverse effects the restructure may have on the workforce.

Our team has experience providing guidance on legal obligations as well as the broader Human Resources, work health & safety and commercial considerations prior to undertaking a business restructure. Our team will provide support to the business at all stages throughout the restructure to ensure the best commercial outcome is achieved. Post-restructure advice and support is available to ensure that the business is protected from any potential disputes, and in the event such a dispute arises, our team can assist businesses in responding to these.

Our team can assist with all employment aspects of restructuring, including: 

• mapping out a legally compliant and commercially suitable process; 

• preparing a business case for redundancies and restructures; 

• advising on transfer of business issues; 

• making applications that an enterprise agreement not transfer to a new employee; 

• drafting required letters and communications; 

• advising on consultation obligations under the Fair Work Act;  

• advising on suitable alternative employment; and 

• advising on the requirement to make redundancy payments. 

Our team has a wealth of experience leading businesses through workforce restructuring and can provide comprehensive advice to guide your business through this complex area. Our advice is provided in an efficient and time sensitive manner and ensures all obligations and liabilities are addressed and managed to provide the best outcome possible for the business.

Understandably, during the process of restructuring, businesses are often required to make positions redundant, meaning that the position is no longer required to be performed by the employee. For the business to protect itself from an unfair dismissal claim, a great deal of planning is required to ensure the redundancy is in fact a genuine redundancy and all award and legislative standards are complied with. In addition to structuring the redundancy, employees are entitled to redundancy or severance payments under the National Employment Standards, however, calculating entitlements is not always as straightforward as it may appear. 

Our team has extensive experience structuring and managing redundancies for businesses in a variety of industries. The team will provide your business with a pragmatic and practical solution, while ensuring business needs remain paramount at all stages of the process. 

Work Health & Safety

Employers are under a legislative obligation to ensure that hazards and risks in the workplace are controlled to maintain the health and safety of employees at all times while at work. It is imperative that employers maintain a safe and healthy working environment so far as reasonably practical, which includes monitoring workplace conditions and providing employees with information about workplace health and safety.

While employees are also under an obligation to take reasonable care for their own health and safety, an employer will ultimately be liable for incidents that occur in the workplace. Both State and Federal workplace health & safety laws require strict compliance, with a failure to comply often leading to the imposition of significant penalties and prosecution. 

Our team has extensive experience providing employers advice to understand and comply with their obligations. Our team can provide both advice on the business’ current compliance with legislative requirements and make recommendations to ensure ongoing compliance. By developing appropriate policies and training for employees we aim to provide proactive risk management solutions to minimise exposure to incidents occurring in the workplace.

Unfortunately, accidents can occur in the workplace despite extensive planning and compliance with obligations. Where an incident does occur, it is imperative that employers seek immediate legal assistance to ensure compliance with legislative obligations. Our team is able to provide urgent legal assistance to assist with: 

• incident investigations; 

• dealing with regulatory authorities; and 

• managing workers’ compensation claims. 

Discrimination

Under both State and Federal legislation it is prohibited to treat someone unfavourably based on an attribute protected by law. In Victoria, protection from discrimination under the Equal Opportunity Act extends to discrimination in employment.

Importantly, the Equal Opportunity Act provides a list of protected attributes, which include:

Discrimination can occur either directly or indirectly. Whilst direct discrimination can appear evident, indirect discrimination can be less obvious. Employers may face a scenario where a business decision has been made which is legitimate but has the effect of indirectly discriminating against an employee. Our team understands the complexity of these matters and can draw on a wealth of experience and knowledge to assist your business in the event this scenario arises.  

With extensive knowledge of both legislative and common law principles for discrimination, bullying and harassment, our team can assist you to navigate this incredibly sensitive subject area.

Independent Contractors

The nature of employment is changing, with the rise of the ‘gig-economy’ signifying workers' interests are moving away from the traditional full-time or part-time employment model, and instead embracing contract, temporary or freelance work. Employers are now fronting a new set of challenges in ensuring legislative compliance in the face of changing employment relationships.

An increasing area of concern for many employers is the heightened scrutiny of independent contractor agreements, with the Fair Work Ombudsman taking a particular interest in sham contracting arrangements used by employers. Unfortunately for employers, there is no definitive test that can be relied upon to conclusively determine whether a worker is an independent contractor or an employee at common law. Instead, the totality of the relationship must be considered to ascertain the true legal nature of the relationship.  

Importantly, as this area of law has continues to be considered more closely, the Courts have established a range of factors that will be considered to establish the actual nature of the relationship. While this list is not exhaustive, some of the factors considered include: 

• the degree of control; 

• the ability to delegate work; 

• the requirement to provide tools and equipment; 

• the hours of work; 

• payment of any entitlements; 

• whether the worker or business bears the financial risk; and 

• the method of payment.  

Our team understands that it is often difficult to identify where the line is drawn to determine if a worker is an employee or an independent contractor. To assist with ascertaining this distinction, the team has developed an independent contractor tool that can be customised to the needs of each individual business to highlight any concerns surrounding the engagement of an independent contractor. Additionally, the team is able to prepare and review contractor agreements to ensure they achieve the aims of the business.

Prior to engaging independent contractors, businesses should seek advice first on how best to proceed to most effectively protect the business’ interests.

• preparing and implementing employment contracts and HR policies; 

• assistance with industrial and Union disputes; 

• independent contractor issues; 

• restructuring advice; 

• award and enterprise agreement interpretation; 

• preparing an enterprise agreement; 

• conducting workplace investigations; 

• managing ill and injured workers, including managing workers’ compensation claims;

• conducting performance and conduct management training; 

• developing anti-discrimination, harassment and workplace bullying policies and training staff on their obligations; 

• all aspects of termination of employment; 

• representation in all employment related litigation including unfair dismissal, general protections and breach of contract claims; 

• managing redundancies; 

• Fair Work Ombudsman investigations and prosecutions; and

• work health and safety policies and training.