New Industrial Relations Advisory
The ACA is delighted to introduce Tom Earls of Fair Work Lawyers (FWL), who will provide principal industrial relations advisory services for ACA members.
What do you do in your day-to-day work?
Every day is a new day in employment law and any time I think that ‘I’ve heard it all’ I am quickly brought back to reality. Our firm acts exclusively for employers, and our day to day work encompasses the full range of advisory and, if required, litigation. The firm regularly appears before the Fair Work Commission and other employment tribunals as advocates and solicitors.
A day may include drafting a contract, checking an award entitlement, advising on a termination or warning letter or advocacy, and anywhere in between.
For the last six months or so, our lives – much like everyone else’s – have been dominated by COVID-19 related matters. Initially, this was advisory work but as time has gone on and circumstances have changed, we have noticed significantly more litigation and compliance issues. This is to be expected when there is significant economic upheaval and uncertainty, particularly as JobKeeper reduces.
Looking forward to 2021, it could be anyone’s guess. The Federal Government is poised to announce its proposed reforms of the Fair Work Act so there’s a good chance that will dominate the political landscape and may lead to some real improvements for employment outcomes. That said, we’re nowhere near out of the woods with COVID-19 and the economy remains fragile, so where we go from here is anyone’s guess.
What are the most common problems you see?
A series of high profile corporate underpayment of wages claims (notably 7-eleven, Woolworths and a whole suite of hospitality ventures) has seen a significant focus on underpayment of wages. The Fair Work Act contains significant penalties for employers who don’t comply (up to $63,000 per offence for a company) and penalties often dwarf the underpayment itself. As a result, it’s now a common tactic for applicants to search for minor legislative non-compliance to leverage higher settlements. This has seen the level of compliance required explode over the last few years.
One of the unfortunate effects of the current economic climate is an increase in redundancies and general employment turnover. Our firm did a normal year’s worth of unfair dismissals in June, and another in July this year. Many of them were related to redundancies. While the Fair Work Act makes provision for ‘genuine redundancies’, it is not as simple as making the person redundant. There is a process to follow, and failing to do that can expose the employer to litigation, which often means the spectre of paying ‘go away’ money.
What are the core legal obligations employers need to be across, and regularly check on?
As noted above, the increased compliance focus in employment law means that it is vital to ensure compliance with awards or enterprise agreements, and also the National Employment Standards, which apply to all employees. Unfortunately, the common understanding that you can simply pay someone an ‘above-award’ amount to cover them for these issues is not quite as simple as this and we come across innumerable employers who enter into informal arrangements with employees, only to find that the relationship sours and that arrangement comes back to haunt them.
Maintaining up-to-date contracts with employees will overcome a lot of these issues. Part of Fair Work Lawyers’ role with the ACA is to provide advice and update ACA’s suite of employment agreement templates, which are a valuable member resource. Of course, new contracts can’t simply be foisted on employees – they need to be agreed (usually as part of the employee’s next salary review).
Another frontier in employment law at the moment surrounds work from home. All pundits agree that the ‘new normal’ will see traditional office work supplemented to some extent by working from home arrangements. While the productivity and cost equations will be something for employers to consider themselves, employment laws – and particularly awards that are grounded in well over a hundred years of litigation – do not neatly allow for work from home arrangements, and this is particularly so where employees are working flexible hours and/or on a part-time basis. For the time being, this has not eventuated in claims – perhaps reflective of the largely collegiate dealings between employees and employers over the pandemic. However, as the new normal emerges, employers who fail to adequately address these issues face risks.
How do employers’ legal obligations intersect with and relate to workplace culture ?
It’s easy to get caught up worrying about legal issues and lose sight of the importance of having a productive and harmonious team. Legal compliance is important, but it’s not the ‘be all and end all’. A rules-driven workplace will often become stagnant and encourage the same behaviour from their staff. That said, employers face the brunt of any breaches of legislation, with almost all obligations resting on the employer. As with everything in business, managing staff involves a balance between a variety of competing factors.
Where do you think employers are doing well?
The main thing employers are doing well is employing people – lots of people, and at a time when the economy and climate is extremely uncertain. It’s easy to get caught up in the rhetoric but at the end of the day most employers – especially small businesses – are working around the clock to keep people employed and create opportunities. Good staff are hard to come by and most businesses do whatever they can to keep the talent.
Unfortunately for us, people rarely call a lawyer to tell them that everything is going fine. It is when problems arise that we are called in to help, often too late. One of our regular observations of employment litigation is that it often arises due to gaps between an employee’s expectations and reality. Naturally, managers will tend to avoid conflict and often overdo positive reinforcement, leading to an employee thinking their behaviours or performance is OK when it’s not. As the gap between the employee’s perceptions and the manager’s reality grows, the risk of litigation increases. The best managers we have seen find the balance between ‘carrot and stick’ and ensure that employees are fairly managed and the employee’s expectations reflect that.
Tom Earls founded Fair Work Lawyers in 2014. He has been involved in IR and legal service for fifteen years, representing employees and employers, individually and collectively, in a variety of jurisdictions. Prior to commencing Fair Work Lawyers, Tom was the Legal and Workplace Services Manager for the Master Builders Association of South Australia from 2006–2014. During this time he was involved extensively in managing industrial relations issues in an often intense industrial environment. This included involvement in cutting edge cases and on all recent landmark construction projects in Adelaide.
Most recently, Tom was the principal advocate for Lend Lease Building Contractors Pty Ltd in ground-breaking litigation preventing misuse of right of entry, along with numerous matters involving the new Royal Adelaide Hospital project. In 2013, Tom co-authored the legal text “Moving on: Unfair Dismissals under the Fair Work Act 2009” with leading industrial barrister Rick Manuel.
In the workplace relations field, Tom has been intimately involved in the preparation and negotiation of hundreds of enterprise agreements, union and non-union, and represented employers in scores of matters before the Fair Work Commission and other Courts and tribunals – covering a range of matters from safety prosecutions to workers compensation disputes to discrimination to common law damages claims to Full Bench and Full Court appeals. Tom was appointed to the Industrial Relations Advisory Committee, the Workers Rehabilitation and Compensation Advisory Committee and is a member of the Industrial Court of South Australia’s Review Panel.