What is employment law?

Employment law revolves around the contract between employer and employee (where there is an agreement to work in return for wages or salary).

In Australia, workplace relations law is based on contract law. At the same time, it is regulated by both federal and state legislation. The ways in which these different branches of law intersect in relation to employment issues is complicated. As a result, if you are involved in a dispute in your workplace, you should seek legal advice as soon as possible, so you can fully understand both your rights and your responsibilities.

There are a few key issues regarding employment law you should keep in mind.

First, a contract of employment may be:

• written

• oral

• partly written and partly oral.

Second, a letter of appointment may also constitute an employment contract.

Third, a written contract of employment seldom (if ever) contains exhaustive provisions about every aspect of the employment relationship. Terms may be incorporated into the contract through documents such as workplace codes of conduct and company policies. In addition, terms may be implied through industry custom or common law (judge-made law).

How can we help you with your employment law issue?

At Monardo Solicitors, we understand that the workplace can be a difficult environment to manage from a legal perspective. It is an area where different interests are constantly competing and, as a result, disputes sometimes arise. Sadly, employment law disputes can be unpleasant, and people often ignore them until they have spiralled out of control.

We can help, by providing you with clear and practical advice that lets you know your rights and your obligations so that your workplace dispute is managed as efficiently as possible.

Are you an employer?

As an employer, you will be aware that workplace relations is a complex area of the law. If an issue flares up, it is important to get legal advice as quickly as possible so that you understand your rights and obligations.

We can provide employers with advice on the following issues:

• federal and state legislation (including on issues relating to occupational health and safety)

• the Fair Work Act 2009 (Cth).

• superannuation

• workers compensation

• bullying

• harassment

• workplace investigations.

We can also help you with:

• drafting employment contracts

• preparing workplace policies and other guidelines.

Are you an employee?

If you are an employee, there are many issues you may face in the workplace. These include:

• negotiating an employment contract

• termination of employment

• unfair dismissal

• redundancy

• underpayment of money

• discrimination

• victimisation

• harassment

• bullying

• performance issues

• educationtraining

• award entitlements

• leave entitlements

• post-employment restraints (such as non-compete and restraint of trade clauses).

If you are facing one of these issues, we can provide you with clear and concise advice on your rights and obligations, both under your contract and under the state and federal laws that apply to your situation.

How does Monardo Solicitors approach employment law?

Our in-depth understanding of workplace relations law, and our experience in alternative dispute resolution, means that we have the tools to help you negotiate your way through most employment law disputes and achieve the best possible outcome. If your dispute ends up in court, you will find the experience and skills of our litigation team invaluable.

What is the difference between an employee and an independent contractor?

The employer–employee relationship has its origins in the common law concept of ‘master and servant’. In this way, the employment relationship is one where the employee serves the employer. As a result, there are a number of rights and obligations that attach to the employee–employer relationship.

In contrast, where an independent contractor is providing their services, the rights and obligations that operate in an employer–employee relationship generally don’t exist. However, it is important to understand that an independent contract is covered by discrimination law and health and safety law, and the general protections provisions under the Fair Work Act 2009 (Cth).

As a result, the outcome of a dispute in the employment area sometimes depends on whether the person was an employee or an independent contractor. There are cases where employees are required to work as independent contractors but are really employees (‘sham arrangements’). In these cases, it is especially important to seek legal advice, because your status may have a major influence on the outcome of your dispute.

What is the difference between unfair dismissal and wrongful dismissal?

In a case of unfair dismissal, a court looks at whether a dismissal was harsh, unjust or unreasonable. This areas involves issues such as the:

• type of employment

• award and enterprise agreement coverage

• provisions of the Fair Work Act 2009 (Cth)

• Small Business Fair Dismissal Code.

In a case of wrongful or unlawful dismissal, the court looks at whether the employer breached the employment contract. It is a matter of common law.

What is payment in lieu of notice?

Employment contracts can include a term that allows an employer to make a payment in lieu of giving notice. In practice, this means that an employer has to pay the employee an amount equal to what they would have earned had they worked during their notice period. Paying an employee in lieu of notice means that the employer brings the contract to an immediate end.

It is important to understand that if there is no provision in the contract allowing an employer to make payment in lieu of notice, an employer must allow the employer to work out their notice period. This can be important in circumstances where an employee’s visa depends on them remaining in employment.

What is ‘gardening leave’?

‘Gardening leave’ is an alternative to payment in lieu of notice. It is the term for the situation where the employee remains employed and continues to draw a salary but is not required to attend or perform work.

Employers sometimes use gardening leave to prevent an employee from having access to the business’s confidential information and/or clients during the notice period. They may also use it to prevent the employee working for another organisation for that period of time, or, delay the employee from going to work for a competitor.

What is redundancy?

Redundancy is a form of termination of employment that may occur for a number of reasons. However, the key one is that the job is no longer to be performed.

Redundancy entitlements may include:

• statutory entitlements to notice

• contractual entitlements to notice

• leave

• redundancy pay

• bonuses

• share options.

If you have been made redundant, it may come as quite a shock. You may feel both uncertain and vulnerable. At the same time, redundancy is a complex area of the law, and it is a good idea to seek independent legal advice in order to ensure the legality of your redundancy and to protect your rights and entitlements.

What is a non-compete clause?

A non-compete clause is a post-termination provision that restricts your right to set up a competing business, usually within a geographical area and for a specific period of time.

If you are about to sign an employment contract containing a non-compete clause, you need to consider this carefully and may wish to seek legal advice. A non-compete clause may have serious consequences for your future employment and restrict your business opportunities in the future.

What is restraint of trade?

A restraint of trade clause is designed to protect the employer’s business interests. It has two main objectives:

• to attempt to regulate an employee’s conduct while engaged in the employment relationship

• to restrict a former employee’s conduct once the employment relationship has ended.

Generally, restraint of trade clauses are enforceable to the extent ‘reasonably necessary’ to protect the ‘legitimate business interests’ of the employer. Under the law, the following are protected:

• employer’s trade secrets

• confidential information

• customer connections

• staff relationships.

However, an employer cannot protect itself against simple competition from former employees.

What is the new federal bullying law?

Under amendments that were made to the Fair Work Act 2009 (Cth) on 1 January 2014, if you are bullied at work and there is a risk that the bullying will continue, you may be able to obtain an order from the Fair Work Commission to stop the bullying.

Who is covered by the federal bullying laws?

The new federal anti-bullying laws apply to:

• employees of corporations

• employees of the Commonwealth Government

• some maritime employees.

However, the anti-bullying laws do not apply to:

• employees of non-corporations (for example, sole traders, trusts, partnerships and unincorporated associations)

• employees of the New South Wales Government (and other state governments)

• employees of local government.