Workplace peace of mind
Everyone is entitled to a fair and safe working environment. The workplace is more regulated than ever before, so it’s imperative you have up-to-date advice on Employment and Industrial Law.
Turner Freeman’s experience is widely respected in this field. Our specialist lawyers can advise on all workplace matters and how to conduct your affairs at work in a fair, safe and lawful manner.
As you know, workplace disputes involving civil rights and employment laws can have severe—even personal—consequences if not promptly resolved. You can breathe easy knowing we have successfully handled many difficult cases and have proven expertise in this area.
Below are some of the many areas of Employment and Industrial Law we handle. Please feel free to contact us to discuss your issue further.
Employment and Industrial Relations Practice Areas
- Dismissal
- Contractual issues
- Drafting and interpreting contracts
- Employee entitlements
- Discrimination and Equal Opportunity
- Litigation
- Occupational Health and Safety
- Harassment or bullying in the workplace
- Enterprise Awards and Agreements
- Enterprise Bargaining
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Dismissal: the firing line
Many unfair and unlawful dismissal claims can be resolved through negotiation. In some cases, however, court action is required. In cases where disputes about dismissal arise, our team is experienced and effective in conducting litigation or using the most appropriate alternative dispute resolution techniques.
Our Employment and Industrial Law team is comprised of highly proficient litigation lawyers to help you achieve a favourable outcome to your dispute. We provide skilled representation in various courts and tribunals including; the Industrial Relations Commissions, Anti-Discrimination Tribunals, Chief Industrial Magistrate’s Court and Federal Courts.
Contractual issues: on the same page
Employment contracts describe the terms and conditions of the working relationship between individual employers and employees. Since these contracts are enforceable by law, it’s wise to ensure they are equitable from the outset.
An unfair contract is one that is harsh, unjust or against the public interest, or that is designed to thwart the operation of an industrial agreement (such as an Award or Enterprise Bargaining Agreement). A breach of contract occurs when one party fails to fulfil their obligations under the contract or makes it impossible for the other party to fulfil theirs.
If you need advice on a contractual issue, you will want a lawyer familiar with such areas who can guide you through this process effectively. Turner Freeman has many years’ contractual experience and can give you open and honest advice about your particular issue. We can assist you by:
- Creating contracts for you that reduce the likelihood of disputes
- When disputes do arise, negotiating on your behalf to help you avoid litigation
- When litigation is unavoidable, providing highly proficient litigation lawyers to work towards a favourable outcome
Drafting and interpreting contracts: between the lines
Employment contracts should be drafted in clear terms so both employers and employees know exactly what is expected of them.
Should an employment dispute arise, often the first course of action is to examine these terms.
Unfortunately many employment contracts are improperly drafted and so can be hard to understand or enforce in a dispute.
Terms and policies are often implied in contracts but not specifically written down. Subsequent grey areas include policies relating to internet and email use, occupational health and safety, and many other areas.
Hence it is crucial that considerable care is taken to ensure employment contracts—which may be in force for many years to come—are comprehensive and easily understood.
Over many years Turner Freeman has produced hundreds of such contracts, thoroughly researched and tailored to each client’s needs. We have the breadth and depth of knowledge to fully advise all parties on their rights and obligations under particular employment contracts.
Our experienced team provides professional legal advice to help clients resolve contractual disputes and make them aware of the consequences of their intended actions.
Should an employment contract need to be enforced, our extensive negotiation and litigation experience can help resolve such disputes with a minimum of cost and uncertainty.
Employee entitlements: a fair day’s pay
Employers have a responsibility to provide workers with:
- Appropriate wages
- Full leave entitlements
- Full superannuation contributions
At the very least employers must provide the minimum payments and leave entitlements specified in the legislation, Award or Enterprise Bargaining Agreement relevant to their industry. However individual circumstances can also influence this complicated field of law.
Our specialist and highly experienced Employment and Industrial Law team can help you navigate the difficulties of this area. We will ensure you receive accurate advice about payments and will effectively represent you in the event of any dispute.
Discrimination and Equal Opportunity: a fair go
Unlawful discrimination is the less favourable treatment of a person based on race, ethnicity, gender, religion, national origin, family or carer responsibilities, sexual preference, physical or mental disability, disease or age. It can often occur in the workplace or in the provision of services to a person.
If you are currently dealing with a situation of this kind, you need lawyers who can advise you on the best way to handle it as well as provide effective legal representation. Turner Freeman has an exceptionally high rate of success in resolving discrimination claims for our clients and is dedicated to ensuring fair treatment for all.
Our specialist lawyers are experts in different kinds of equal opportunity and anti-discrimination law so you can be confident you are receiving sound advice.
Litigation: settling differences
Should you be sued, the importance of having a highly experienced lawyer on your side cannot be overstated.
Turner Freeman has an outstanding reputation of successful litigation spanning 50 years. Many groundbreaking court decisions and judgments have been awarded to us. Protecting and defending our clients’ interests is paramount.
Our experienced team will skilfully handle your employment or industrial dispute, pursuing a positive outcome either by expert litigation or, where possible, using alternative dispute resolution techniques.
If necessary we can also expertly represent you in the Industrial Relations Commission, Anti-Discrimination Tribunals, the Chief Industrial Magistrate’s Court and Federal Courts and the many others that exist for employment related matters.
Occupational Health and Safety: hazard warning
The Occupational Health and Safety Act 2000 recognises the social importance of ensuring people’s safety at work. It imposes harsh penalties upon both corporations and individuals, including significant fines and potential imprisonment. Should a company breach the Act, that company’s directors can also be held accountable for breaching it, unless they can satisfy the courts otherwise.
Compliance with the Act therefore protects not only workers’ essential safety but also the potential exposure of companies and directors to considerable liability.
Employers have a duty to consult with employees regarding workplace safety. Many do not realise that legislation even governs the way in which this must be done.
Our Employment and Industrial Law team is well versed in the latest occupational health and safety obligations and will help you fully comply with the law. We will also act effectively for you in occupational health and safety prosecutions.
Harassment or bullying in the workplace: the right to respect
Both employers and employees have a duty of care towards others in the workplace.
Employers have a duty under occupational health and safety legislation to prevent bullying and harassment. Similarly workers who bully or victimise their colleagues fail in their duty to care for the health and safety of others. Failure to observe this duty of care can result in large fines or potential imprisonment.
Harassment in the workplace can also be of a sexual nature and is subject to similar penalties. Sexual harassment occurs when a person is the subject of unwelcome sexual advances or conduct of a sexual nature (such as exposure to sexually explicit material or suggestive jokes) likely to cause offence, humiliation or intimidation.
If you are or have been bullied or harassed at work, or believe it may be happening to others, seek professional advice as soon as you can.
Turner Freeman has extensive experience in matters involving sexual harassment, workplace bullying and victimisation. We will help resolve such matters promptly and effectively to ensure a civil workplace for all.
Enterprise Awards and Agreements: set the standard
Most workplaces and most types of work are covered by State or Federal Awards or Agreements, which govern the terms and conditions of employment.
Awards specify minimum standards of employment across industries or workplaces. Only in exceptional circumstances can an employer lawfully impose terms and conditions below these standards.
Agreements may be made between employers and employee organisations or directly with employees, provided this does not compromise their rights under the relevant Award.
It can be difficult to determine the Award or Agreement that applies to employees. And when identified, it can be even harder to ensure compliance.
Yet in today’s highly regulated workplace it is essential that all parties understand their rights and obligations. Our Employment and Industrial Law team works with Awards and Agreements every day and so has a thorough working knowledge of most major Federal and New South Wales Awards. We offer a practical, hands-on guide to the often complex interaction between the various Awards and Agreements, and their application to each workplace.
Enterprise Bargaining: negotiate to win
Negotiating and certifying Awards and Agreements can be highly complex and emotive. Industrial disputes and conflict are common—unsurprisingly, since the parties involved risk severe financial and personal hardship as well as possible exposure to considerable liability.
If you need to negotiate or re-negotiate an Award or Enterprise Agreement, it is crucial that you get comprehensive, strategic advice to avoid pitfalls. Turner Freeman’s Employment and Industrial Law team has extensive industrial experience and thorough knowledge of the latest laws and decisions to secure you an excellent outcome.
Service & Excellence in Employment & Industrial Relations
Negative workplace issues can cause great distress and financial hardship. That’s why your Turner Freeman lawyer will quickly grasp the complexities of your situation and fight intelligently to defend your rights.
Excellence in Employment and Industrial Law is a Turner Freeman hallmark. Our reputation has been built on it, and our lawyers are widely regarded as the ones to see when you have a complicated, “tough” case.
In disputes they will draw on their considerable court and tribunal experience to strongly represent you, and supply precise, up-to-date advice to minimise the risk of future disputes.
As part of our commitment to creating safe, secure workplaces for all, we offer free workplace seminars on Industrial Relations and Employment issues to help you understand your legal obligations and rights before legal issues emerge.
Our half-century of legal expertise will help us understand your situation and give you proactive advice that works. And our wide range of practice areas means all your legal issues can be dealt with in the one place.
Frequently asked questions:
To assist you in your Employment or Industrial Law matter, Turner Freeman has put together a list of commonly asked questions:
Q. When can an employee make an unfair dismissal application?
A. An employee can make an application in relation to an unfair dismissal if they have been dismissed on grounds which were harsh, unjust, unreasonable or that constituted unlawful discrimination, provided that the Industrial Relations Commission has jurisdiction to hear the application. There are a number of jurisdictional issues which applicants in unfair dismissal matters face. Even if a dismissed employee applies out of time, or has some other concern in relation to making an application, they should obtain legal advice as soon as possible if they believe that they may have grounds for making an unfair dismissal application.
Q. What is “constructive dismissal”?
A. Constructive dismissal is a dismissal, which is at the initiative of the employer, but is in fact carried out by the employee. Examples of constructive dismissal include: situations where the employee is given no choice but to resign; or where the employee’s position is changed so radically as to be a completely different job – such as the situation where a position is moved from one city to another. An employee who has been constructively dismissed may be able to make an unfair dismissal application.
Q. Can an employee make an unfair dismissal complaint if dismissed during their probationary period?
A. Employees who have been dismissed during a probationary period of employment may face some restrictions in making unfair dismissal applications. However, this does not mean that employees have no rights at all during a probationary period of employment. Employees are able to make applications in respect of discrimination, underpayment of wages and unfair contracts at any time during their employment. Further, if the period of probation is ‘unreasonable’ then an employee dismissed during his or her probationary period may still be able to lodge and pursue an unfair dismissal application.
Q. What is redundancy? What are the minimum payments, which must be made if an employee is made redundant?
A. A redundancy occurs where an employer no longer requires particular work, or a major portion of a position, to be done by anyone. When an employee is redundant, the employer may wish to transfer them into another position, or may terminate their employment. If a person is retrenched, then their employer may have an obligation to make payments to them in lieu of notice, and for severance. Whether such payments are due, and how much the payment will be, depends on the industrial instrument or contract which is in place.
Q. Can redundancy be enforced?
A. Yes. In situations where an employer has determined to make one or more employees redundant, the employer does not need the consent of the employees concerned. The manner in which employers select employees for redundancy, and give notice of redundancies, is a matter, which may be affected by any relevant industrial instrument, contract or policy. An employee who is dismissed on the grounds of redundancy may still be able to make an unfair dismissal application if their dismissal was harsh, unjust or unreasonable in the circumstances.
Q. What is retrenchment?
A. Retrenchment is the dismissal of an employee on the grounds of redundancy. An employee who has been retrenched may have a right to dispute their dismissal or the amount of their termination pay through an unfair dismissal application, an unfair contract application, an underpayment of wages claim or other forms of litigation.
Q. What is an industrial instrument?
A. An industrial instrument is an Award, Enterprise Bargaining Agreement or Australian Workplace Agreement.
Q. How can employees enforce payment of the correct hourly rate and other entitlements?
A. If employees believe that they have not been paid the correct rate of pay, or have not been paid for some other allowance or entitlement, then they are entitled to discuss that matter with their employer and with their trade union. If these discussions are not successful, then the employee is entitled to make an application the Court, to recover the money as a debt.
Q. What are employee entitlements to annual leave, sick leave and long service leave?
A. Many permanent employees and some other employees are entitled to these forms of leave. Casual employees and contractors may not be entitled to these forms of leave. Whether or not casual employees and contractors are entitled to these forms of leave may depend on factors such as their period of service with the employer and any applicable industrial instrument. To determine the amount of annual leave, sick leave and long service leave which an employee is entitled to; they will need to look at both the relevant legislation and also any applicable industrial instrument.
Q. When must superannuation contributions be made? What happens if they are not made?
A. Superannuation contributions must be made by employers in relation to most employees or others working under a contract for the provision of their labour. If an employer does not make the required superannuation contributions, the employee can report the employer to the Australian Tax Office, and can enforce individual payments by way of court action.
Q. How can I determine the correct Award for a particular position?
A. Award coverage is a complex question and can depend on the nature of the work done by the employee, the industry in which the work is done, whether the employer is a member of an industry association and whether the employee is eligible to join a trade union. You can get assistance in determining whether there is an Award or Enterprise Bargaining Agreement covering a particular job by contacting the Department of Employment and Workplace Relations, or the NSW Department of Commerce, Office of Industrial Relations.
Q. What are parental leave entitlements?
A. Parental leave is a particular form of leave, available to women who have given birth to a child, their spouses, and to people who adopt children. Parental leave is generally available to all permanent employees and to long-standing casual employees. The maximum length of time available for parental leave, and whether that leave will be paid or unpaid, will depend on the industrial instrument or contract that governs the employee’s terms and conditions of employment. However, as a minimum entitlement, both New South Wales and Commonwealth legislation currently provide for a period of 52 weeks’ unpaid parental leave.
Q. What obligations do employers have to prevent discrimination and harassment in the workplace?
A. Employers must take all reasonable steps to prevent discrimination and harassment in the workplace. This includes discrimination and harassment in the recruitment and training process, while employees are engaged in work related activities, in decisions about career development and promotion, and in decisions related to discipline and termination. It can also extend to obligations to the general public if the employer is providing a service or where the employees have contact with the public in the course of their work.
Q. What are the options for someone who has been harassed or discriminated against?
A. A person who believes that they have been the subject of unlawful discrimination or harassment may be able to make a complaint to the Anti Discrimination Board or the Human Rights and Equal Opportunities Commission. Both of these bodies have the power to investigate and conciliate complaints of unlawful discrimination. Complaints to either of these bodies are subject to a time limit. Anyone who believes that they may have grounds to make a complaint of unlawful discrimination should seek legal advice as soon as possible.
Q. Are employers liable for discrimination and harassment carried out by their employees?
A. In circumstances where an employee commits acts that are discriminatory or harassing, then the employer may be liable for the employee’s actions. Employers are required to take all reasonable steps to prevent harassment and discrimination, which may include having known and clear policies, grievance procedures, taking action where a complaint of discrimination or harassment is made and conducting effective training for the workforce.
Employment and Industrial Relations Client Testimonials
In June 2004, I had a serious employment matter that was of great concern to me. I engaged the services of Turner Freeman on the advice of a colleague. During the whole case my solicitor behaved professionally, gave excellent advice, and worked tirelessly in negating the opposition argument. She proved not only to have an excellent knowledge of the Industrial Relations Law, but also became an expert in various company policies relating to my case.
I commend her personally for her strong court skills. She continually made the opposing solicitor look like he was just out of law school, even though he was closing in on 60.
In November I won my case (settled out of court). I cannot thank my Turner Freeman solicitor enough for restoring my faith in not only the Law, but in fighting for what you believe is right.”
Lewis M Ross, Employment & Industrial Relations Client
[My Lawyer] worked fast and hard to take my claim to the Industrial Relations Commission. He kept me informed all along the way. When we were in court he handled things very professionally when dealing with [the opposition], their lawyer and appearing before the judge.
Importantly, thanks [my lawyer], I got a great result that exceeded my expectations…
[My Lawyer] made me really feel like he had a personal interest in getting the best outcome for me. He always responded promptly to my calls and e-mails and was very knowledgeable about all aspects of employment law.
Comments from a Turner Freeman Employment & Industrial Relations Client
Personal service you deserve: a refreshing change
We recognise that your employment matters are unique, so before we even attempt a solution we thoroughly investigate every element with you.
You will also have direct access to our partners, who will treat you as if you were our only client.
More than that, you’ll be pleasantly surprised at how we take every aspect of your matter into account when presenting advice to you.
Because our team come from diverse ethnic backgrounds, we can most likely understand your cultural sensitivities, and perhaps even speak your language.
Unlike other law firms, our half century of experience helps us understand your needs and give you proactive advice that works. And with a comprehensive range of practice areas we can handle all your legal needs under one roof.
Further information
If you’d like more information on your Employment and Industrial Law matter, apart from contacting us the following organisations may be able to help you:
For general information about Employment and Industrial Law matters
Australian Law Online website
www.law.gov.au
Australian Industrial Relations Commission (AIRC): Tel. (02) 8374 6666 or
www.airc.gov.au
Australian Industrial Registry, Level 8, Terrace Towers,
80 William Street, East Sydney, NSW 2011
For information on wages, Awards and Agreements
Wagenet: Tel. 1300 363 264 or
www.wagenet.gov.au
OWS, 7th Floor, North Wing, 477 Pitt Street, Sydney
(GPO Box 9879, Sydney, NSW 2001)
For information on New South Wales Awards and Agreements
NSW Department of Commerce, Office of Industrial Relations: Tel. 131 628 or
www.industrialrelations.nsw.gov.au
Fax: (02) 9020 4700
1 Oxford Street, Darlinghurst, NSW 2010
(PO Box 847, Darlinghurst NSW 1300)