Workplace Law

Workplace matters can consume enormous sums of money, time and energy. Our proven processes can help limit the rise and escalation of issues, foster an agreeable resolution, or pursue sensitive litigation actions where necessary.

Testimonials

I cannot thank you enough for your professional and empathetic approach making it as smooth and seamless as possible during the mediation. While this has been one of the most daunting experiences, one I never wish to go through again, I feel the end is near and the future for myself and the boys looks all the more stable and healthier thanks to all of you! You have all dealt with my ups and downs during the process and the level of detail, care and kindness from you all is appreciated more than I can express.

Family Law Client

You have given me the chance of a fresh start that I didn’t think I’d ever have again to be honest. You literally changed my life and I’ll never be able to thank you enough. Just wanted to let you know how much I sincerely appreciate all your help and hard work.

Compensation Client

The team at Chamberlains made buying a property extremely easy, I never once experienced the stress people talk about during the exchange/settlement periods of their property. Definitely recommend!

Conveyancing Client

The debt recovery team went above and beyond when our business was owed money. Would use again for sure!

Insurance Client

We Support

Employees

Employers

Unions

We picked the most highly specialised and talented lawyers.

Maintaining a stable, productive, and safe workplace can mean the difference between success and failure for a business. Commercial objectives, performance, and reputation can depend upon successful management of employment, industrial relations and health & safety issues.

Our team advises and represents both private and public sector clients in all aspects of the employment relationship under federal and state employment, industrial relations, and health & safety legislation and regimes. When we partner with you, we become part of your team for the long term. We take time to understand your workplace environment, your industry issues, your business strategies, and we deliver legal services in line with your business and commercial objectives.

We give your business legal support and guidance on risk management strategies, and help you to preserve and enhance your corporate reputation ensuring that your workplaces are productive, flexible, and as safe as possible. Workplace issues are rarely straightforward.

 

Process - what happens next?

Initial case evaluation

After an initial briefing of your matter, we will provide you with a preliminary quote.

Consultation

We look into all aspects of your matter and suggest the most viable path for you.

Case management

The Chamberlains team will work tirelessly to reach the best possible outcome for you.

Services

Employment Documentation & Enterprise Bargaining

Relationships between employers, employees, unions and contractors should be clearly documented to manage expectations and give everyone certainty.

That means you need someone who can write in simple, plain English to lessen the chances of complex and costly disputes arising as well as someone who is an astute negotiator and represent the varied interests of employees, employers and unions.

That ‘someone’ works at Chamberlains.

Employment Audit Services

Don’t let the word ‘audit’ scare you. At Chamberlains, our service is about protecting you by assessing how well you comply with relevant employment laws, and matters such as enterprise agreements and awards.

Our audits can also help you clarify when an employee is an employee. Sounds simple, but if you’ve never heard the phrase ‘sham contracting’, you should speak to us, and soon.

Antonia was incredibly helpful, I am very grateful for her help and for Chamberlains' efficiency. Thank you so much, cannot recommend you enough for the assistance you've provided.

Gregory C.

Work Health & Safety

Workplace accidents and safety incidents can have a significant impact on a business’s ability to continue to function. It can harm productivity as well as staff morale, and lead to potential liability for penalties for your company, or even penalties and imprisonment for company directors and officers.

Having robust systems in place to ensure a safe and healthy workplace can mean the difference between a thriving business or a closed business.
At Chamberlains we assist corporations with everything from compliance and risk management to serious workplace incident management, investigations and regulatory prosecutions.

Work health and safety does not only concern physical hazards, and as holistic workplace lawyers, we are also experts at addressing mental health risks caused by alleged bullying, harassment, discrimination, or mismanagement. Chamberlains has extensive experience in acting for employers in the agriculture, health, mining, manufacturing, infrastructure, maritime and electrical supply sectors.

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Dispute Resolution

Inject the phrases ‘whistle blower protection’ and ‘Fair Work ACT’ into a conversation and watch everyone’s body language tense.

Add ‘unfair dismissal’, ‘confidentiality breach’ or ‘workplace misconduct’ to the mix and listen to the heightened vocals.

Everyone imagines the litigious end game when they hear these words, but the Chamberlains employment team is well versed in advocacy and alternate resolutions. We know how to use the system to your best advantage and plot a calmer, more cost-effective conclusion.

Fair Entitlement Guarantee

If your employer goes belly up, who will be looking out for you when it comes to your benefits?

The team at Chamberlains can assist by negotiating on your behalf to help recover what’s owed to you under the government’s Fair Entitlement Guarantee.

We can even act for you in making a claim against the liquidators appointed to manage your employer’s failed business.

Industrial Relations

Employers operating in today’s contemporary workplace environment face competing interests against a backdrop of growing legal complexity, and social and technological change.Employment and industrial issues provide some of the trickiest and most time consuming problems for a business. The sheer task of managing human resources can be a minefield without proper legal support.

We advise our clients and act in a range of employment and industrial relations matters with a strategy and focus on preventative measures and early dispute resolution.

However, if the worst occurs, we are experienced litigators and will ensure the best possible outcome for your business. We balance sensitivity, tact and patience with expertise, skills, and reliability.

 

FAQ - Employers

  • What is workplace law?

    Workplace law covers a range of legal issues that arise before, during and after employment. It also covers almost every aspect of the relationship between employers, employees and contractors. Workplace law is governed by the Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Cth).


  • Why is an employment contract important?

    Employment contracts establish the working relationship by setting out the terms and conditions, frameworks and policies relevant to a specific workplace. They provide clarity for each party, outline the employee and employer’s rights and obligations as well as protect the employer from risks associated with employment. They also clearly define the employee duties, renumeration and any leave entitlements.


  • Are all employees protected under workplace laws?

    Generally, most employees of Australian workplaces are protected under the Fair Work Act 2009 (Cth), however the relevant protections and rights vary depending on the type of employment. The Fair Work Act 2009 (Cth) only covers employees of Australian workplaces, and does not cover state public sector and local government employees.


  • What is the difference between an employee and a contractor, and does it matter?

    An employee is hired under an employment contract to perform a role until the contract is terminated by either party. Generally, employees will be paid by the employer in accordance with the hours they work.

    A contractor hires out their services to a business under a negotiated contract for services for a specified period of time. Contractors are paid in accordance with invoices they render for the services they provide. Contractors have different laws apply to them in terms of rights and responsibilities and are usually responsible for paying their own taxation and superannuation, and are often required to supply their own equipment.

    The difference between a contractor and employee can be very important, as it will determine whether an employer is required to pay superannuation and PAYG withholding, and also whether that person is covered by workers compensation insurance.


  • What can an employer do to prevent workplace discrimination and bullying?

    All employers should implement an anti-bullying and discrimination policy. After enforcing such policies, it is important to ensure they form part of training, induction processes and are accompanied by appropriate complaints processes and procedures.

    These policies can help build a safe and inclusive workplace culture where employees are able to broach management with all issues. However, it is important to review these (and all policies) regularly to ensure they remain relevant and comply with changes to workplace laws.


  • Does my business need workplace policies? What policies should it have?

    Workplace policies are documents that set workplace standards to protect employers’ interests and create a positive workplace culture and values.

    Workplace policies and procedures are important for all workplaces as they establish integrity and fairness in the workplace and outline the procedures that all employees should be following. They connect the purpose and values of the workplace into the day-to-day procedures. Further, they communicate to employees how to deal with situations, who to advise and what steps to follow.

    Although workplace policies are usually not enforceable contractual documents, they are still valuable for the employer as they set out important workplace guidelines which help to minimise the legal or safety risks arising from the workplace. An example of this includes an appropriate resignation or termination policy to minimise risk of an Unfair Dismissal claim from an employee.

    The specific policies and procedures that workplaces should implement vary depending on the type workplace. There are, however, many standard workplace policies that employers should implement, including:

    • Code of Conduct
    • Workplace Health and Safety
    • Anti-Discrimination
    • Disciplinary procedure
    • Dispute resolution
    • Complaint procedure
    • Termination/resignation procedure
    • Internet, social media and email policy
    • Overtime policy
    • Work from home policy

  • I want to change my employee's regular working hours, how can I do this?

    Prior to changing an employee’s regular working hours you should review the employee’s contract of employment to confirm if this details or specifies agreed hours of work. If so, any variation to the employee’s hours of work would necessitate a variation of their employment contract.

    Under the Fair Work Act 2009 (Cth) and the common law, which implies good faith obligation into contracts, the employer must consult with employees about any change to their regular working hours.

    It is also important to check if there are any specific obligations under an award, registered agreement or other workplace instruments.


  • An employee is not performing well, can they be terminated?

    In the absence of serious misconduct, an employee cannot be terminated without warning or notice.

    Generally, in instances of unsatisfactory performance, you must first issue a formal warning letter and have a meeting with the employee (in which they may bring a support person with them). During the formal meeting you should advise the employee:

    • Advise the employee of the reasons for the warning being issued;
    • Ask the employee for their response;
    • Provide a set of criteria for future performance measurement;
    • Advise the employee that if their performance does not improve to a satisfactory standard, their employment will be reviewed and may be terminated.

     

    The meeting should be followed by a supervised period to track the employee’s progress. If the identified behaviour stops or improves, a letter should be given to the employee outlining their progress and removal from the supervision period.

    If their performance and behaviour does not improve, another formal written warning and meeting should occur. This should advise the employee that if they fail to improve they risk termination. It is important to remember to document all verbal meetings.

    If the employee continues to unsatisfactorily perform, a written termination should be issued notifying the employee of their termination from employment, the reasons for this and date of termination.


  • When I terminate an employee, what do I need to pay them?

    For full-time or part-time employees, it is important to ensure that you have given them at least the minimum amount of notice required under their employment contract or the Fair Work Act 2009 (Cth). In some instances, payment may be made in lieu of notice.

    An employee’s final pay should include:

    • Outstanding wages or renumeration still owing;
    • Accumulated unused annual and long service leave;
    • Payment in lieu of notice (if applicable);
    • Redundancy pay (if applicable).

  • What is unfair dismissal?

    Unfair dismissal occurs if termination or dismissal of an employee is found to be harsh, unjust or unreasonable. Under the Fair Work Act 2009 (Cth) a claim of unfair dismissal needs to be brought to the Fair Work Commission within 21 days of the dismissal.

    There are eligibility requirements, being the minimum period of employment (1 year for small business employees or 6 months for other businesses), maximum earning requirements and the protection is not available for contractors.


  • An employee has lodged an unfair dismissal claim against my business, what do I do?

    It is important to seek legal advice quickly as the Fair Work Commission has deadlines attached to many claims. A response form must be lodged with the Fair Work Commission detailing the employment dates, reasons for dismissal, response to claims raised by the employee and any jurisdictional objections.

    Following this a conciliation will occur between the employer and employee. The aim of the conciliation is to achieve an informal resolution of the matter.

    Each party is able to put their position forward in an attempt to reach an agreed settlement. If the conciliation is unsuccessful in reaching a settlement outcome, the employee may proceed to take the matter to hearing before the Court.


  • I employ casual employees; do I need to convert them to part-time/full-time eventually?

    “Casual conversion” is the term used to refer to the process of offering a casual employee a part-time or full-time position after 12 months on their casual contract. However, casual employees do not automatically get converted to part-time or full-time employees. The employee and employer must meet various eligibility requirements for the casual conversion process to apply.

    Small Businesses are those that have less than 15 employees (including casual employees engaged on a regular or systematic basis). Small businesses do not have to offer casual conversion, however casual employees can still request conversion after 12 months of casual employment, if they have worked a regular pattern of hours on an ongoing basis for at least the last 6 months.

    There are reasonable grounds for not making an offer or refusing a request including that the position wont exist, the hours of work will significantly reduce or the employer would have to significantly adjust the employees work hours to make them full or part time.

    If an employer is not going to make an offer of casual conversion, a letter must be written to the employee 21 days after the employees 12-month employment anniversary.


  • Can I ask my employee for a medical certificate when they take sick leave?

    Under the Fair Work Act 2009 (Cth), an employer can ask an employee for a medical certificate for as little as 1 day or less off work.

    An employer may ask for this evidence to show that the employee was not able to work because of an illness or injury or needed to care or support a family or household member. If an employee does not provide this evidence when reasonably requested by the employer they may not be entitled to be paid for their sick or careers leave.

    It is important to ensure that the request is reasonable and complies with any extra requirements as specified in an award or registered agreement. It is not reasonable to an employer to attend a medical appointment or contact the employee’s doctor for further information.


  • My employee didn’t show up for work, what should I do?

    It is first important to determine the reason for the employee’s absence as they may be legally entitled to leave (e.g. sick, careers or parental). If there is no reason for the failure to attend the workplace as and when required you must first issue a formal warning letter and have a meeting with the employee (in which they may bring a support person with them).

    During the formal meeting you should advise the employee:

    • Advise the employee of the reasons for the warning being issued;
    • Ask the employee for their response;
    • Provide a set of criteria for future performance measurement;
    • Advise the employee that if they continue to fail to attend, their employment will be reviewed and may be terminated.

    If the employee continues to fail to attend, another formal written warning and meeting should occur. This should advise the employee that if they fail to attend work without reasonable excuse again, they risk termination. It is important to remember to document all verbal meetings.

    If the employee continues to fail to attend the workplace, a written termination should be issued notifying the employee of their termination from employment, the reasons for this and date of termination.


  • My employee got injured on the job, what do I need to do?

    Workplace Health and Safety laws, regulations and codes of practice were modelled by SafeWork Australia in 2011 for other states and territories to adopt. The underlying principle of the model WHS Act is that, so far as is reasonably practicable, duty holders provide workers with the highest level of health and safety.

    This means that a person conducting and undertaking a business, as the duty holder, is required to do whatever is reasonably able to be done at the time to ensure the health and safety of their workers. Employers have notification requirements for notifiable incidents. Notifiable incidents are ones that involve death, serious injury or serious illness to a worker or a dangerous incident that exposes workers to a serious risk.

    Under WHS Laws, a person conducting or undertaking a business must report a notifiable incident to WorkSafe by the fastest possible means and keep a record of all notifiable incidents for at least five years. Failure to notify SafeWork of the occurrence of a notifiable incident, keep a record of a notifiable incident or preserve an incident site until an inspector arrives carries large penalties.

    Businesses also have to have workers compensation from an insurer to ensure that compensation can be paid to an employee injured at work. If an employee is injured at work, the employer needs to notify the insurance company and complete all relevant documentation.


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