Employment Lawyers, Melbourne

Employment law at Hanlons

Employment law in Australia is governed principally by the Fair Work Act 2009 (Cth), the National Employment Standards, modern awards and registered enterprise agreements, together with the common-law contract of employment and a range of ancillary statutes covering work health and safety, equal opportunity, discrimination, long service leave and superannuation. The practical questions facing employers and employees rarely sit neatly within a single instrument; they require advice that reads the contract, the policies, the award and the statute together.

Hanlons acts for both sides of the employment relationship. We advise small and mid-sized employers on the establishment and ongoing management of their workforce, and we advise executives, senior employees and employees generally on the terms on which they are engaged, on issues that arise during their employment, and on the arrangements that apply when employment ends. We do not present ourselves as a niche employment boutique; the work is conducted alongside the firm's commercial, property and succession practices, and employment advice often forms part of a wider business or personal matter we are already handling.

Employment contracts and engagement

The written contract of employment sets the foundation for the relationship and, in our experience, is the document that most often determines how disputes are resolved. A well-drafted contract sets out remuneration and benefits, hours and location, position and reporting, leave entitlements, confidentiality and intellectual-property obligations, restraints, and the basis on which the employment may be terminated. We advise on:

• Drafting and reviewing contracts — preparing and updating contracts of employment for permanent, fixed-term, part-time and casual engagements, including award coverage, set-off clauses and annualised-wage arrangements.
• Executive and senior arrangements — advising on executive service agreements, short and long-term incentive plans, equity and option arrangements, deferred remuneration, garden leave and notice provisions.
• Contractor and labour-hire — assessing whether a person is properly engaged as an employee or independent contractor in light of the statutory definition in the Fair Work Act and recent High Court authority, and on the consequences of mischaracterisation.
• Award and enterprise-agreement coverage — identifying applicable modern awards, classifying employees correctly, and addressing the practical interaction between the award, the contract and any enterprise agreement in place.
• Pre-employment review for employees — reviewing an offer of employment before it is signed, advising on restraints, incentive arrangements and termination provisions, and negotiating amendments with the prospective employer.

Workplace policies, investigations and governance

Many of the issues that escalate into formal disputes can be managed earlier through clear policies and a proper investigation process. We assist employers to put in place workplace frameworks that are practical to administer and defensible if they later come under scrutiny, and we conduct or advise on workplace investigations where allegations have been raised.

• Workplace policies — drafting and reviewing policies covering conduct, grievance handling, discrimination and harassment (including the positive duty under the Sex Discrimination Act 1984 (Cth)), social media, working from home, drug and alcohol use, and use of employer systems and information.
• Investigations — advising on the structure of an investigation, procedural fairness, the use of internal versus external investigators, and the management of evidence and reporting.
• Performance management — advising on performance-improvement processes, warning protocols, support arrangements, and the relationship between performance management and a later termination for capacity or conduct.
• Workplace health and safety — advising on the duties of officers and persons conducting a business or undertaking under the Occupational Health and Safety Act 2004 (Vic), incident response, and the management of WorkSafe inspections and prosecutions in conjunction with specialist counsel where required.
• Discrimination and equal opportunity — advising on the application of the Equal Opportunity Act 2010 (Vic) and federal anti-discrimination statutes to recruitment, employment and termination decisions.

Termination, redundancy and exit arrangements

The end of an employment relationship is the point at which most legal exposure crystallises. We advise on the lawful and orderly exit of employees at every level, from entry-level positions through to senior executives, and on the negotiation of exit arrangements that close out the relationship on agreed terms.

• Termination for conduct or capacity — advising on the substantive and procedural requirements for a lawful termination, including notice, opportunity to respond and the documentary record.
• Redundancy and restructure — advising on genuine redundancy under section 389 of the Fair Work Act, consultation obligations under modern awards and enterprise agreements, redeployment, and the calculation of redundancy and accrued entitlements.
• Executive exits — negotiating departure terms for senior employees, including payment in lieu of notice, treatment of incentives and equity on termination, restraint and non-solicitation arrangements, and reference and announcement protocols.
• Deeds of release — drafting and reviewing deeds of release and settlement, confidentiality and non-disparagement clauses, and the appropriate carve-outs for accrued statutory entitlements, superannuation and workers’ compensation.
• Post-employment obligations — advising on confidentiality, return of property and information, and the practical enforcement of restraints on competition and solicitation.

Fair Work and workplace disputes

Where a workplace matter cannot be resolved internally, it typically progresses to the Fair Work Commission, the Victorian Civil and Administrative Tribunal, the Australian Human Rights Commission, or a court of competent jurisdiction. Hanlons appears for clients in the Commission and the tribunals and acts as the instructing solicitors in court-based employment proceedings, retaining counsel where appropriate.

• Unfair dismissal — advising employees and employers on applications under Part 3-2 of the Fair Work Act, including the 21-day filing period, jurisdictional objections, the Small Business Fair Dismissal Code, and conciliation and arbitration before the Fair Work Commission.
• General protections — advising on adverse-action and workplace-rights claims under Part 3-1 of the Fair Work Act, including dismissal and non-dismissal claims, the reverse onus of proof, and the choice between the Fair Work Commission and the federal courts.
• Bullying, sexual harassment and discrimination — advising on stop-bullying and stop-sexual-harassment orders under the Fair Work Act and on discrimination complaints to the Victorian Equal Opportunity and Human Rights Commission and the Australian Human Rights Commission.
• Underpayment and wage claims — advising on award and agreement compliance, back-pay calculations, voluntary disclosures to the Fair Work Ombudsman, and the management of compliance notices and investigations.
• Contract and restraint disputes — advising and acting on claims for breach of contract, breach of fiduciary or equitable duties, misuse of confidential information, and the enforcement or resistance of post-employment restraints in the Supreme Court of Victoria.

Our preference, wherever it is genuinely available to the client, is to resolve workplace disputes by negotiated outcome rather than contested hearing. Litigation in employment matters is expensive, public and rarely improves the working relationship; an early, well-advised settlement is usually a better commercial result for both sides.

Acting for employers

For business clients, we provide ongoing advice on the workforce as part of the wider commercial relationship. That typically includes maintaining a current suite of contracts and policies, day-to-day advice on conduct, performance and leave issues as they arise, support through restructures and exits, and representation if and when a matter reaches the Fair Work Commission, the courts or the regulator. Employment risk is best managed by addressing issues early and documenting them properly rather than by responding to claims after the fact.

Acting for executives and employees

For individual clients, we advise on offers of employment before they are accepted, on issues that arise during employment (including performance processes, investigations, variations to duties and remuneration, and leave and accommodation requests), and on the terms on which employment ends. Where a claim is appropriate — for unfair dismissal, general protections, discrimination, underpayment or breach of contract — we advise on the merits, the available forums and the realistic range of outcomes before recommending a course of action.

How Hanlons assists

Initial conferences are conducted in our Collins Street office or by telephone or video. Scope and fees are discussed at the outset and confirmed in writing. We act on both ongoing retainers for employer clients and on discrete matters for individuals and businesses, and we are candid about the strengths and weaknesses of a matter and about the realistic prospects of any proposed course.

What to bring

• The current contract of employment and any variation letters.
• Position description, applicable modern award and any enterprise agreement.
• Relevant workplace policies (conduct, grievance, performance, leave).
• Recent payslips and a summary of total remuneration, including incentives and superannuation.
• Correspondence about the matter in question (emails, letters, formal warnings or show-cause letters).
• For a termination: the termination or redundancy letter and any proposed deed of release.
• For a restraint or confidentiality issue: the contract clause relied on and any handover materials.
• For a Fair Work or tribunal matter: any application, response and notice of listing already issued.

Related services

Employment matters frequently overlap with other parts of the firm's practice. Workforce arrangements are often addressed alongside commercial and business law advice on the wider business; executive arrangements and business succession sit alongside personal wills and estate planning; and premises questions are addressed under our property and conveyancing practice. To discuss a specific employment matter, please contact our office.