Gone are the days of getting a free tertiary education, landing a good job, and moving up the corporate ladder at the same company until retirement.

Like many facets of the economy, employment is facing disruption. Both employers and employees have more alternatives to the traditional model, led by the march of technology into our everyday lives, according to John Tuck, practice group leader of employment, workplace relations and safety, at Corrs Chambers Westgarth.

“Effectively, the traditional, full-time, permanent employment model is being challenged – and, in some cases, dismantled – by a fast-paced and fluid job market,” he says.

The definition of ‘the workplace’ is also changing, expanding beyond physical work premises to include anywhere the worker goes in the performance of their duties, Kemp Strang employment partner Lisa Berton believes.

“Technological advances have meant that we have more flexible workplaces, so we’re seeing employees who work outside typical core hours and a large number of employees are not just leaving the office and their work behind them.”

As legislators race to keep up with these changes, the past 10 years have seen significant upheaval in legislation around employment, particularly the Fair Work Act. Now, however, employers are demanding some consistency, according to Chris Oliver, director of employment law services provider, People + Culture Strategies.

“We had that period of fairly significant development; we’ve heard the reaction of not only society in general, but employers in particular, of the need for some certainty in this area so that they can plan around those laws. We’re seeing that at the moment.”

Activity on the rise

While this legislative ‘ebb and flow’ might be easing, the level of activity in employment law practices remains high.

In part, this can be attributed to a growing awareness among employees of their rights, Kemp Strang employment partner Nick Noonan says.

“We constantly see cases where employees are responding adversely to disciplinary action or performance management. There’s been a real growth in employees taking legal action as a way of trying to avoid or eliminate any adverse consequence on their employment.”

Stigma around lawsuits is also decreasing – from both the employees’ perspective, relating to claims such as stress, harassment and bullying, and from the employer’s perspective, around potential business backlash.

“There is a continuing trend around stress-related claims being articulated through workers' compensation claims. Unfair dismissal applications have become certainly a common feature of the landscape,” Mr Noonan says.

Ms Berton agrees that activity is spiking in the sector, citing “fairly savvy employees” as a factor. 

“Many employees don’t perceive any stigma or any effect on future employment prospects in bringing a claim,” she says.

A further consideration could be employers becoming more proactive.

“It’s all risk-based legislation, so it’s not about waiting until something happens and then being reactive. The organisations need to be extremely proactive in the work health and safety space,” Ms Berton says.

Mr Oliver suggests organisations are investing more in human resources activities to tackle these issues.

“Certainly, over the last five years or more, there has been an increasing understanding from employers that sometimes a dollar spent in the proactive space can save you 10, 20, 50, 100 dollars in the reactive space,” he says.

He adds that current demand is focused on that compliance and problem avoidance space, rather than in litigation.

Commission versus courts

Many employment cases are settled by the Fair Work Commission rather than through the court system.

“The commission can deal with things by arbitration, but it can’t make what we would disclose as a judicial finding because it’s not a judicial body,” Mr Tuck says.

Lawyers cannot automatically represent their clients before the Fair Work Commission. While they are able to assist in the preparation of the case, they must seek permission to appear.

Mr Oliver suggests this streamlines the process and keeps expenses minimal.

“The commission is designed to facilitate the jurisdiction where workers and employers alike can represent themselves and they don’t need to go to the expense, or perhaps inconvenience, of having representation in order to have their matters effectively dealt with,” he says.

Ms Berton highlights that often clients will choose to represent themselves, but will seek the assistance of lawyers to help them in the lead up to that conciliation.

“We often assist them in preparing the documents, and assist them in understanding the process and giving them the knowledge that they need in order to be able to conduct conciliation on their own,” she says.

“It’s also important to note that many clients have in-house lawyers. The in-house lawyer of an organisation can represent the organisation in the Fair Work Commission.”

The rise of the boutique

Boutique law firms are active across the legal sector, but this model has been particularly successful in employment law.

“The fact that they pop up is kind of indicative of the market,” Ms Berton says, suggesting that the rise of boutique firms gives clients more choice. Rather than seeing this model as a threat, she believes they tend to service a different niche.

“The benefit of having boutique employment firms is that they can probably offer services to an array of clients that might include a lot of employees, as opposed to larger firms where the focus is often on the corporate clients,” she says.

“Some of the boutique firms will focus on employer work, but there are others whom we would refer employees to. It’s often difficult for a larger firm to do that work for employees unless they’re a high level employees because I think they often get priced out.”

Mr Noonan suggests much of the employment work done at larger firms is off the back of corporate work or insolvency work, with the employment law advice provided as part of a larger job.

“National firms with an insolvency practice, corporate practice, banking and finance practice, litigation practice and employment practice can be a one-stop shop for clients,” he says.

“Whereas in a boutique firm, they might not be briefed on that sort of work that has a corporate or a banking and finance spin to it.”

Mr Oliver believes, however, that the size of a firm is less relevant than its lawyers’ ability to connect with clients.

“What clients want is not only a firm but individuals within that firm who really understand their business and can provide clear strategies and solutions,” Mr Oliver says.

“There are rarely black and white solutions to an issue where human beings are involved and where there is emotion involved. So, in that sense, many clients are really looking for that more solution-driven advice rather than some form of polemic about legislation and case law.”