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How can employment and safety lawyers face 2023?
“Courts are challenging the norms in employment and safety law,” says this Dentons partner. He divulges what employment and safety lawyers can expect in 2023 and how they can advise.
Jess Feyder
Paul O’Halloran, partner in Dentons’ Melbourne office, has reflected on some of the major employment and safety law decisions of 2022 and spoke to Lawyers Weekly about what is coming in 2023.
Another defining case of 2022 saw the Supreme Court of Victoria rule in favour of a female employee who was being paid less than her male counterpart over a seven-year period. Her employer was found culpable of unintentional discrimination based on her gender.
Two other defining cases saw the High Court of Australia deliver newly defined classifications of the distinction between independent contractors and employees. The rulings held that when parties had committed to terms of a relationship through a written contract, it was characterised as employment.
Another case found that an independent contractor was entitled to a superannuation guarantee, as his employment agreement actually classified him as an employee.
In the now widely known case of Kozarov v State of Victoria [2022], the High Court found an employer in breach of its duty of care to the psychological safety of an employee.
Mr O’Halloran reflected on the key themes emerging from these cases, “employment law is constantly evolving to reflect contemporary expectations around what is acceptable behaviour at work, or what is an acceptable way to be treated at work.”
“The employment relationship is fluid because it deals with real people in real situations at work,” Mr O’Halloran told Lawyers Weekly.
“What may have been acceptable 10 years ago, for example, working excessive hours, or putting up with stressful work which impacts on mental health, or denying the concept of unconscious bias, is now being confronted.”
Courts and Tribunals dealing with employment law disputes are challenging the legal norms, stated Mr O’Halloran, “in some cases, such as the test for distinguishing employees from independent contractors, reversing decades of previous case law”.
Mr O’Halloran predicted that for 2023, decisions would increasingly favour employees, apart from in cases where very serious deviations from expected professional standards can be proven.
What do lawyers need to know?
“Employment lawyers must be agile and cognisant that this is one area of law where change is inevitable,” Mr O’Halloran said to Lawyers Weekly.
“As attitudes, technology and expectations relating to the workplace change, so will decisions in this area.
“Employment lawyers are encouraged to read widely and stay up to date with legislative and case law changes in order to best advise their clients,” he advised.
Workplaces today are dynamic, diverse, and multifaceted. Because of this reality, advisers in employment law and workplace relations must keep pace with these generational, technological, and attitudinal workplace changes to remain in sync with the needs of their clients, Mr O’Halloran explained.
“Most clients want pragmatic, sensible and well-informed advice tailored to their particular needs to help them manage people and the complex situations employees can find themselves in at work,” he said.
To best serve clients, lawyers should seek a real and practical understanding of the workplaces in which they are advising and should look to spend time in their client’s natural habitat, he advised.
