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Practice Profile: Employment lawyers riding the wave of reform
In the aftermath of the Fair Work Act, the employment law space is full of activity requiring lawyers to decipher new regulations and upcoming reforms. Briana Everett reports
In the aftermath of the Fair Work Act, the employment law space is full of activity requiring lawyers to decipher new regulations and upcoming reforms. Briana Everett reports
Whether or not its full impact will be disastrous, as some industry commentators fear, the introduction of the Fair Work Act has certainly brought a new wave of business for employment lawyers following a period of uncertainty amid the introduction of WorkChoices in 2005.
"It's a bit of a laugh when you hear politicians saying, 'Well Fair Work started and it hasn't caused all the disasters that people said it would.' Well it hasn't had the opportunity to do so," Middletons partner Gerard Phillips notes.
"In about 2006 and 2007, a lot of employment lawyers were not very busy. At that time you had the coincidence of a booming economy, full employment and WorkChoices. WorkChoices removed a lot of rights. It was a fairly historical low-point for employment lawyers ... the classical industrial work went away."
With the ongoing political debate amongst the major parties surrounding industrial relations reforms, there is still a degree of uncertainty in the air for employment lawyers as to which way the parties will turn, particularly after the Gillard Government failed to garner a majority vote at the last federal election. As a result, the future of industrial relations - and the upcoming challenges for employment lawyers - lies with the unpredictable outcome of this ongoing political contest.
Last year Opposition Leader Tony Abbott famously assured Australians that WorkChoices is "dead, buried and cremated". However, the future of Australia's industrial relations system was again thrown up in the air last year after Abbott revealed to ABC Radio his intention to make changes to the Act if elected.
And although the Gillard Government recently announced it had no plans to make any major amendments to the existing Fair Work legislation, in November last year the Minister for Tertiary Education, Skills, Jobs and Workplace Relations, Senator Christopher Evans suggested otherwise.
Noting that productivity growth will be the prism through which the Government will consider future industrial relations issues, Senator Evans said the Government would not amend the Act "unless those amendments are required to implement specific election commitments".
Keeping them busy
Within this unstable political environment, employment lawyers can now only assume that the Fair Work Act is here to stay and continue to grapple with the new regulations and the interpretation of the various decisions being handed down on an almost daily basis.
"The challenge is just keeping pace with the reforms and the decisions ... it's a challenge for any practitioner in our area," says Blake Dawson partner, Stephen Woodbury.
And thanks to these major reforms, the employment law practices of firms across the country are showing no signs of slowing down.
"If you're a practising lawyer in the [industrial relations] area you have to deal with the cards you know exist and that's in the Act and Regulations right now," Phillips says, remarking that the future for workplace relations and safety practice groups is looking strong. "I'm pretty bullish about the future for this practice group."
According to Phillips, the volume of work has increased with respect to both the remaining WorkChoices agreements which are due to expire as well as the new agreements made under the Fair Work Act.
"As these pre-Fair Work Act agreements begin to expire, you're going to see a lot more work in the pure industrial law space in terms of advice for client strategy," he says.
Likewise, Australian Business Lawyers & Advisors director Joe Murphy has noticed an obvious increase in the number of claims in the general protections area under the Fair Work Act, highlighting the 2010 decision of the Full Court of the Federal Court of Australia in Barclay v The Board of Bendigo Regional Institute of Technical and Further Education as a sign of what's to come.
"That was a significant decision because it's the first decision of its kind and I think given that the individual was successful in that case we're likely to see more of these matters proceed to court instead of just settling," he says.
"There's absolutely more work. We're seeing an increasing use of these types of claims in an industrial context. So it's something that employers have had to consider when dealing with unions, for example in enterprise bargaining."
Similarly, Woodbury has noticed increased trade union activity as a result of the reforms plus more individual claims, particularly under the adverse actions provisions of the Fair Work Act.
"Any change in legislation leads to work but I think, particularly the Fair Work Act, has actually created a lot more work because it's given people more rights. So that's been good," he says.
On the horizon
Adding to the Federal Government's landmark reforms of 2009 are the upcoming reforms to the occupational, health and safety (OHS) laws in 2012, representing another major development for Australian workplaces.
With different standards applied within every state and territory with respect to the regulation of employer obligations, calls were made for a national OHS framework.
"Australia is one market and we should behave as one market," Phillips says. "It's a significant reform and well overdue."
In 2008, the Minister for Employment and Workplace Relations (then Julia Gillard) announced a national review into the model OHS laws.
"[The harmonisation] is a big thing. There are significant changes across all jurisdictions of Australia. The most significant thing is that it's proposing to be a national act ... so you'll find that national businesses can cater for the one act," Murphy says.
"[A national act] is better for business. It's better for industry as a whole if we have piece of legislation that's adopted in each of the states and territories. It makes life easier in that regard."
Following the Commonwealth's review of the OHS laws, the Model Work Health and Safety Bill 2009 was recently approved by the Commonwealth as well as most states and territories, except for Western Australia which has voiced its objections to the new legislation.
Each state and territory is expected to implement laws similar to the model legislation in time for the legislation's commencement on 1 January 2012. However, the Western Australian and New South Wales governments have not yet acceded to the reforms.
Under the new model legislation, NSW is set to lose the reverse onus of proof in relation to individual liability and unions will lose the power to prosecute for breaches - a change rejected by the NSW Labor Government.
However, with the NSW state election quickly approaching, the NSW Opposition has declared it will support the Model Act in its current form if elected.
"WA [and NSW] are saying they won't sign on for the model act so we'll have to watch this space and see what happens," Murphy says.
With further reforms on the horizon, within an unstable political environment, Murphy says employment lawyers are faced with the ongoing challenge of anticipating the changes and their impact for clients.
"We need to be getting the message out to our clients about changes in legislation and relevant cases ... getting the message out there and making sure they know about it."
