Practice area 07
Employment, Work Health & Safety
In a rapidly changing global economy and a complex legal area, achieving your commercial objectives and protecting your reputation depends on getting the workplace right.
In a rapidly changing global economy and complex legal area, achieving your commercial objectives and protecting your reputation depends on careful, well-informed risk management of employment practices, workplace behaviours and work health and safety.
Every business is different. Tailored, pragmatic advice in the employment and work health and safety areas provides astute businesses with a significant competitive advantage through increased productivity and reduced risk of future damaging issues.
Broadley Rees Hogan's independently recognised Employment & Work Health & Safety team has substantial experience in discreetly advising major employers across a wide variety of industries, including building and construction, education, energy and resources, franchising, health and life sciences, hospitality and catering, financial services, property development and management, manufacturing, and professional services.
We take the time to know your business, because it is essential to what we do. Our ultimate goal is to maximise your competitive advantage by assisting you to minimise employment and work health and safety risk.
Employment
- Preparing and negotiating all employment-related agreements, including award, salaried and executive employment contracts, consultancy and contractor agreements, retention agreements and settlement agreements.
- Advising on human resources processes and procedures for recruitment, performance appraisal, performance management, discipline, corporate restructuring and redundancies.
- Advising on executive remuneration, including remuneration structuring, equity incentive arrangements, termination benefits and shareholder approval requirements.
- Conducting risk management compliance audits relating to the National Employment Standards, payroll record keeping, and award, enterprise agreement and contractual compliance.
- Advising on and representing in relation to termination of employment, including dismissal for poor performance, misconduct or redundancy; contractual and statutory obligations; notice and termination payments; and Corporations Act limits on termination payments.
Industrial relations
- Planning, negotiation, drafting and implementation of enterprise agreements.
- Advising on consultation obligations in relation to workplace change, including corporate restructures and the implementation of workplace policies and procedures.
- Advising on strategies to minimise the risk of workplace disputes and industrial action, and on actual industrial disputation including strikes, lockouts and pickets.
- Acting in relation to obligations towards employee representatives — freedom of association, right of entry laws, bargaining and disputes.
Workplace behaviour
- Advising on compliance with obligations relating to discrimination and harassment on all prohibited grounds, including race, religion, sex, family and parental responsibilities, disability and criminal record.
- Strategic advice on employee behaviour with the potential to adversely impact the workplace — both at work and outside working hours — including management of social media, assault and defamation.
- Developing and assisting in the implementation of internal workplace behaviour policies and procedures.
- Assisting clients with the investigation and resolution of workplace grievances and disputes.
- Representation and defence of discrimination, harassment, sexual harassment, vilification and victimisation claims in all relevant tribunals and courts.
Workplace investigations
We conduct external independent audits and investigations in areas including bullying, discrimination and harassment, employee fraud, WHS incident response, grievances and disputes, misconduct, and workplace behaviour issues.
Work health & safety
- Conducting compliance audits.
- Developing and implementing risk management strategies and procedures, including in unionised workplaces.
- Strategic advice on safety issues including the management of injured and ill employees, rehabilitation and return-to-work programs, drug and alcohol policies and testing, and director, manager and employee compliance exposure.
- Developing and assisting with critical response and defence strategies for major safety incidents.
- Conducting and assisting with workplace investigations into safety incidents and complaints, including critical incidents and fatalities.
- Acting in safety-related prosecutions, litigation and coronial inquests at federal and state level.
Compliance training
We conduct training for directors, managers and employees in areas including recruitment and contract formation; privacy law obligations; protection of confidential information; post-employment restrictions for key personnel; performance management and termination; enterprise agreement negotiation for your bargaining team; appropriate workplace behaviour; management of technology and social media; managing injured, ill and absent employees; work health and safety; complaint handling and grievance procedures; conducting workplace investigations; and separation management and redundancy.
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ExploreEmployment questions
Hiring, managing, ending and keeping people safe.
General information only, current at the time of writing — not legal advice. Every matter turns on its own facts, so please talk to us before acting on anything here.
Who can bring an unfair dismissal claim, and how long do they have?
An employee covered by the national system who has completed the minimum employment period — six months, or twelve months for a small business employer — and who is award or agreement covered or earns under the high income threshold. An application must be lodged with the Fair Work Commission within 21 days of the dismissal taking effect. That period is rarely extended.
What makes a redundancy “genuine”?
The job must no longer be required to be performed by anyone because of operational change, the employer must have complied with any consultation obligations in the award or agreement, and it must not have been reasonable to redeploy the employee within the business or an associated entity. A redundancy that fails any of those limbs can still be an unfair dismissal.
Can I enforce a restraint against a departing employee?
Only so far as it is reasonably necessary to protect a legitimate business interest, judged as at the time the contract was made. Courts look at duration, geography and the activities restrained. Restraints drafted in cascading tiers are far more likely to be partly upheld than one broad clause, and confidentiality and non-solicitation obligations are generally easier to enforce than a blanket non-compete.
What are the National Employment Standards?
Eleven minimum entitlements that apply to all national system employees regardless of any award, agreement or contract — including maximum weekly hours, leave entitlements, public holidays, notice of termination and redundancy pay, and the right to request flexible working. They cannot be contracted out of, and an agreement purporting to do so is ineffective to that extent.
Is someone an employee or a contractor?
It turns on the real substance of the relationship, not the label in the agreement. Getting it wrong exposes a business to unpaid entitlements, superannuation, payroll tax and penalties, and sham contracting provisions carry their own liability. The characterisation has shifted with recent case law and legislative change, so arrangements set up years ago are worth revisiting.
Do I have to investigate a bullying or harassment complaint?
In practical terms, yes. Employers have positive duties to eliminate sex-based harassment and discrimination so far as reasonably practicable, and a failure to respond appropriately to a complaint creates exposure independently of the underlying conduct. Whether the investigation should be internal or external depends on seniority, complexity and the risk of perceived bias.
What are my work health and safety duties as a director?
Officers have a personal, non-delegable duty to exercise due diligence to ensure the business complies with its WHS obligations — which means understanding the hazards, ensuring resources and processes are in place, and verifying that they are being used. Queensland also has an industrial manslaughter offence. Due diligence is an active obligation, not a matter of having delegated safety to someone else.
What should I do immediately after a serious workplace incident?
Ensure the site is safe and the regulator is notified where the incident is notifiable, preserve the scene as required, and get advice before providing statements or documents. What is said and recorded in the first hours often shapes any prosecution that follows, and legal professional privilege over an investigation depends on how it is set up from the outset.
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