We understand the industrial relations landscape can be difficult to navigate and we are able to assist by providing technical advice with a focus on commercial outcomes.
Our Workplace Relations team have extensive knowledge in various areas of employment law, including:
In order for a former employee to make an unfair dismissal application to the Fair Work Commission, they must:
If you receive notice from the Fair Work Commission that a former employee has made an unfair dismissal application, and named your business as the employer respondent, it means that the employee believes that the termination of their employment was harsh, unjust or unreasonable.
Employers will be able to respond to the application, and may also be required to participate in a member assisted conciliation conference to settle the dispute.
The general protections provisions of the Fair Work Act 2009 (Cth) protects workers from being treated adversely because of a protected reason. A worker may make a general protections claim involving dismissal. Alternatively, a worker may make a general protections claim not involving dismissal.
The general protections provisions apply to a range of workers, including employees (including casual employees), prospective employees (including prospective casual employees), independent contractors and prospective independent contractors.
A worker may make a general protections application with the Fair Work Commission where they believe that they have been prejudiced in their employment, or treated adversely, because:
If you receive a notice from the Fair Work Commission that a worker has made a general protections application, the business will have the reverse onus of proving that the adverse action taken against the worker was not because of a protected reason.
The process for dealing with general protections applications will depend on whether the application involves a dismissal or not. Generally, the parties will be able to attend a conciliation conference at first instance. If the parties cannot reach a resolution the matter may be progressed to the Fair Work Commission or the Federal Court for determination.
The Workplace Relations team at Coulter Legal can assist employers by drafting the employer response to the general protections application, and represent the employer at any conciliation or court hearing.
In addition to the National Employment Standards, Modern Awards set out the minimum terms and conditions for employees to which the Modern Award applies. Modern Awards provide specific terms and conditions in relation to various employment entitlements, including:
Determining whether a Modern Award applies to a position will depend on a variety of factors, such as the industry in which the employer conducts its business and the main duties and responsibilities of the position. Importantly, a Modern Award may cover an employer, but it may not apply to every position within the employer’s enterprise. There are also significant risks associated with misclassification of Modern Awards, such as exposure to an underpayment claim.
The Workplace Relations team can assist employers in determining whether its business is covered by a Modern Award and further whether the Modern Award applies to specific positions.
Under the Victorian Equal Opportunity Act 2010, an employer has a duty to eliminate discrimination, sexual harassment and victimisation. This obligation extends to job applicants and employees.
Discrimination occurs when a person treats another person unfavourably because of a protected characteristic, which include:
Discrimination may be direct, in that a person is treated unfavourably because of an attribute. Alternatively, a person may be indirectly discriminated against by having a condition or practice imposed on them that disadvantages the employee.
In some circumstances, an employer may be vicariously liable for another person’s discriminatory conduct.
The Coulter Legal Workplace Relations team are able to assist your business in meeting its obligations by drafting policies and procedures relating to discrimination, sexual harassment and victimisation and provide training to employees on acceptable workplace conduct. These policies may assist employers defend, or limit exposure to, a vicarious liability claim.
Having carefully drafted employment agreements for your employees from the outset will ensure peace of mind that the terms and conditions of your employees’ employment are documented and contractually binding.
This will assist employers in the event a worker attempts to make a claim for unpaid entitlements under an applicable industrial instrument (such as a Modern Award or Enterprise Agreement), fails to comply with their post-employment obligations or otherwise breaches a clause of their employment agreement.
Equally as necessary is having a set of workplace policies setting out the business’ expected workplace behaviour and conduct of its workers. At a minimum, most businesses should have the following policies:
The Workplace Relations team are able to assist businesses with drafting, and providing advice on best practice implementation of, employment documents.
From time to time, businesses will undertake a review of their operational requirements in order to implement a restructure. More often than not, the restructure will result in various positions being made redundant.
Generally, for businesses that are covered by a Modern Award or have an enterprise agreement which covers their workforce, they will be required to comply with specific consultation obligations including:
Where a position is considered to be redundant, meaning that the position is no longer required to be performed by anyone, it is important to consider whether there are any reasonable redeployment opportunities available to the affected employees. This includes consideration of any positions within related entities.
If no redeployment opportunities are available, the effected employees’ employment may be terminated on the basis of redundancy, and may be entitled to redundancy pay, which is calculated in accordance with the length of continuous service.
The Workplace Relations team at Coulter Legal has specific knowledge in redundancy process and entitlements and are able to assist and provide advice in relation to any questions you may have about a proposed, or actual, redundancy.
If your require any further information please contact our Workplace Relations team.