Workplace relations - written by eleanor borgelt, Jennifer ung and phillipa cole

employment law - written by arista tian

What is Workplace Relations / employment law?

Workplace relations lawyers work on a number of issues which may arise in the relationship between employees and employers. This includes employment contracts, enterprise bargaining, industrial relations, unfair dismissal claims, general discrimination claims as well as workplace bullying and harassment. Workplace relations lawyers generally work across both advisory and advocacy roles, meaning that they provide clients with advice regarding their matter, but will also advocate through litigation if the claim cannot be settled.

Employment law is a very similar area of law and covers much of the same ground as workplace relations. Employment law is focused more on the employee and is designed to protect them from mistreatment in the workplace, including from discrimination, unfair treatment, and health and safety. Employment lawyers may work closely with the Australian Fair Work Commission and daily work can involve drafting and reviewing court documents.

Simone is an Accredited Workplace Relations Specialist and Partner at Rigby Cooke Lawyers. She has over 20 years' experience in employment, industrial relations and equal opportunity law; representing and advising employers and senior executives across a range of industries.

Interview

How did you get to being a workplace relations lawyer at Rigby Cooke?

I completed my articles at a specialist employment-law firm and fortunately found that I loved this area of the law as it is very people-focussed and relatable.  After a few years at this small firm acting for employees, to broaden my experience I “switched sides” and began acting for employers, initially at a couple of large firms.  Then, to gain more hands-on industrial relations experience, I moved to a national employer association where I spent 9 years including in a management role. Deciding to return to private practice, I chose Rigby Cooke Lawyers because of the cultural and team fit and work/life balance. I was promoted to Partner two years ago.

What does a day in the life of a workplace relations lawyer look like?

My work involves both ‘front end’ and ‘back end’ work. That is, providing legal and strategic advice to clients, as well as representing them if a matter becomes litigious.  A typical day can involve:

1. providing advice to clients (typically via email, phone or in person after reviewing background material);

2. drafting contracts, agreements or correspondence (including ‘ghost writing’ for clients);

3. appearing on behalf of clients in conciliations, mediations and hearings;

4. preparing for Fair Work Commission or other Court/ Tribunal hearings (including interviewing witnesses and drafting applications, statements and submissions);

5. business development activities such as meetings / briefings / networking functions with clients or potential clients, preparing proposals /tenders, attending external events including industry forums; and

6. keeping up to date with the latest cases / legislative developments, discussing these with colleagues and preparing articles for clients.

Do you represent employees or employers, or both?

The majority of my work (about 90%) involves advising and representing employers (in the private, not for profit and public sectors) on the full range of workplace relations issues. The remaining 10% involves acting on behalf of senior employees including on termination, bullying and harassment issues. 

What is the most fulfilling part of your job?

What I find most fulfilling is using my legal knowledge and experience to help solve a problem faced by my clients and implement strategies to enable them to achieve their objectives. 

I enjoy getting to know how businesses operate and developing a relationship with them which means, over time, I become a trusted and valued business partner.  I have worked with many of my clients for 10-15 years.

When acting for employees it is fulfilling to be able to provide expert advice and enable them to feel more empowered at what is often a very uncertain and difficult time in their lives.

Do you have any advice you would give yourself if you were still in Uni?

There can be a sense amongst law students that clerkships and traineeships in commercial firms in the city are the be all and end all, but don’t panic if you don’t get this opportunity as there are plenty of other pathways into the legal profession. For example: graduate programs offered by many companies and state/federal governments, associateships/ other roles in Courts and Tribunals and paralegal roles which may lead to a graduate position. Be open to roles outside of the CBD as suburban and regional firms can provide you with great experience to kickstart your career. Also, don’t think too narrowly about the area of law you’d like to practice in - you never know what opportunities might arise and you may find yourself enjoy an area you hadn’t even thought about at uni.

What electives/extra-curricular activities would you suggest someone wishing to pursue workplace relations engages in?

Employment and discrimination law subjects provide a good foundation and give you an idea of the sorts of issues you are likely to be dealing with.  Other more generalist subjects that would be beneficial include negotiation / dispute resolution. Involvement in moots would be helpful, as advocacy is a core skill of a workplace relations specialist.  

I’d also encourage anyone to get involved in volunteering at a community legal centre to gain hands-on experience, including client interviewing skills. JobWatch is an employment-rights legal centre.  Monash Uni also has very good opportunities through its law clinic programs.  Any work experience you can gain in law firms will only better your skills and give you some insight into how the law operates in practice.

You could also consider joining the Industrial Relations Society plus keep an eye on employment/ IR cases which are reported in the media and often raise interesting public policy issues. 

Do you have any advice you would give yourself if you were still in Uni?

There can be a sense amongst law students that clerkships and traineeships in commercial firms in the city are the be all and end all, but don’t panic if you don’t get this opportunity as there are plenty of other pathways into the legal profession. For example: graduate programs offered by many companies and state/federal governments, associateships/ other roles in Courts and Tribunals and paralegal roles which may lead to a graduate position. Be open to roles outside of the CBD as suburban and regional firms can provide you with great experience to kickstart your career. Also, don’t think too narrowly about the area of law you’d like to practice in - you never know what opportunities might arise and you may find yourself enjoy an area you hadn’t even thought about at uni.

What electives/extra-curricular activities would you suggest someone wishing to pursue workplace relations engages in?

Employment and discrimination law subjects provide a good foundation and give you an idea of the sorts of issues you are likely to be dealing with.  Other more generalist subjects that would be beneficial include negotiation / dispute resolution. Involvement in moots would be helpful, as advocacy is a core skill of a workplace relations specialist.  

I’d also encourage anyone to get involved in volunteering at a community legal centre to gain hands-on experience, including client interviewing skills. JobWatch is an employment-rights legal centre.  Monash Uni also has very good opportunities through its law clinic programs.  Any work experience you can gain in law firms will only better your skills and give you some insight into how the law operates in practice.

You could also consider joining the Industrial Relations Society plus keep an eye on employment/ IR cases which are reported in the media and often raise interesting public policy issues. 

Note: at the time of the interview, Sam was working at McDonald Murholme Solicitors. He has since moved to Jewell Hancock Employment Lawyers.

Sam is a passionate advocate for those who have been mistreated in the workplace and has worked with thousands of employees to achieve their desired outcomes in employment-related matters. In managing issues, Sam has also made frequent appearances in courts and tribunals across Australia, including the Fair Work Commission and the Federal Circuit Court of Australia.

Interview

How did you get to being a workplace relations lawyer at McDonald Murholme?

I did a double degree in Law and Commerce, majoring in finance, and I graduated in 2016. Whilst at university I worked in building and construction law and completed a commercial clerkship in banking and finance. In 2016 I began working at McDonald Murholme and loved it, so I took the opportunity to work as a paralegal with them. Knowing what I know now about employment law, this is what I was looking for in a career.

What does a typical day in the life of a workplace relations lawyer look like?

At the beginning of my career I was often interviewing new clients. Now I do more conciliations and mediations, as well as advocating in the Fair Work Commission to try and reach resolutions outside of court. Another part of a typical day is drafting statements of claim and interviewing new clients.

What do you find most fulfilling about practicing in workplace relations?

McDonald Murholme is a litigation firm, so we primarily work in advocacy and helping individuals who feel wronged. I enjoy working in workplace relations because of the close client relationships I get to have, especially as a junior lawyer. In other law firms and practice areas, it can take years to have a client facing role, but I have had the opportunity to meet and represent clients and be involved in litigation from the get-go. It feels very meaningful to have the opportunity to represent clients from all different walks of life.

Do you represent employees or employers, or both?

I do predominantly applicant sided work (employees). I really enjoy this because it creates good outcomes for people in difficult positions, it makes my work worthwhile!

How do you manage work/life balance?

Work life balance at McDonald Murholme is great; my bosses have strong views about mental health and achieving work-life balance. I also think that employment law, especially in regards to litigation, has very clear deadlines (usually with plenty of notice) which helps me plan my week in advance and ensure I have plenty of time to complete everything I need to.

What do you love the most about your job?

I love advocacy, and helping clients. Acting for applicants is so rewarding and I enjoy working for them. I get to hear great stories and do really meaningful work.

What is one piece of advice you would give yourself if you were still in university?

I would recommend everyone to go on exchange! I would also recommend participating in activities such as mooting, it helps to do develop advocacy skills that are so useful in your career.

Are there any specific electives/extra-curricular activities you suggest students take if they are interested in pursuing a career in workplace relations?

I did a range of electives including negotiation & conflict resolution, tax and laws of the sea, but I didn’t actually do employment, so that would obviously be a good one to do for this field, but definitely not mandatory! I recommend negotiation & conflict resolution (if that is still a thing) as it helps prepare you for advocacy and being involved in alternative dispute resolution. I would also suggest students try a whole range of electives to get exposed to different areas of law and find something they are interested in.

Suggested Electives/experience

Students interested in pursuing a career in Workplace Relations would benefit from engaging with the following Monash electives and opportunities:

Electives:

• Employment Law (LAW4132)

• Law and Discrimination (LAW4129)

• Negotiation and Conflict Resolution (LAW4160)

Experience:

• Volunteer at a Community Legal Centre

• Volunteer at Job Watch, an Employment Rights Legal Centre

• Exchange programs

• Mooting

• Become a member of the Industrial Relations Society of Victoria

Trent believes in the fair and equal treatment of employees in the workplace and has extensive experience assisting employees in various workplace disputes. Trent’s experience includes managing matters in various courts and tribunals in Australia, and working with the Fair Work Commission and Federal Circuit Court of Australia. Notably, Trent was recognised as one of the top three employment lawyers in Melbourne in 2021.

INTERVIEW

As a student, what inspired you to choose to practice in employment law, and how did you know that this was the most suitable area of practice for you?

My first experience with employment law came as part of a discrimination law unit in university. The unit covered discrimination in employment and this immediately caught my attention. 

At about the same time I saw an advertisement for a casual paralegal role with a small employment law firm that I was successful in obtaining. A few months into this job I realised that employment law was the area that I wanted to practice in. 

I was fortunate enough to also gain some experience in other areas of law that were more transactional in nature at the time, which only reinforced my desire to practice in what I considered to be the more personal and exciting field of employment law. That ability to have a direct impact on someone’s professional and personal life was a big draw for me, as was the opportunity to advocate for employees in particular in workplace disputes. 

What is a typical day like as a Principal lawyer at your law firm?

A typical day involves meeting with a few new clients, speaking with existing clients about their matters and drafting and reviewing correspondence and court documents. Every other day will usually involve some type of appearance in either the Fair Work Commission or the Federal Circuit Court of Australia as well.

We work in a fairly fast paced environment so there is always a deadline or two to meet and a few urgent client matters to attend to at any given time. This usually means plenty of phone calls to field each day and plenty of emails to respond to. If there’s any time leftover, there’s always a few practice management duties to attend to as well. 

What is the most fulfilling part of your job?

Delivering an outcome for a client is definitely the most fulfilling part of my job. This might come as part of a negotiated outcome for a client or by way of final judgment at hearing. Either way, being able to convey to the client that the matter has resolved favourably is quite rewarding, particularly for clients who are dependent on an outcome to help move on to the next professional chapter in their lives. 

What is the most challenging part of your job? 

There are a few challenging aspects. One major challenge is having to constantly overcome the disparity in resources between individual clients and corporate opponents. Most of our clients have recently lost their job, and often their sole source of income. This can make it incredibly difficult for them to litigate against a former employer, which may be an ASX-listed company with in-house counsel and seemingly endless resources.

Another challenge is simply keeping up with the chaos! Clients will often call us with urgent situations that need to be dealt with that day. These can include clients being directed to attend a disciplinary meeting on short notice, a client calling on their final day to file an application with the Fair Work Commission, or clients who have a conference or hearing that same week and need representation. 

What is one thing (or more) that you wish you knew whilst studying or at the start of your career?

Don’t sell yourself short and make sure you’re happy where you’re working. If you’re at a firm that doesn’t value you, doesn’t have a clear pathway for career progression, and doesn’t treat its employees well, leave and find something better.

There are plenty of opportunities for lawyers out there and you don’t want to look back on your career and think that you spent too long working at the wrong firm. 

How do you manage a work-life balance?

This is always a tough one for lawyers and one that I can admit I have struggled with at times. For me keeping active is a big one. Maintaining that gym membership, committing to team sports and even just walking the dog are always good excuses to get away from the desk for a while. Setting boundaries and expectations with clients is also important. Providing realistic timeframes for the completion of work and explaining when and how you will be contactable is vital. Sometimes if I find myself working particularly late, I will even just take a moment and ask myself whether what I’m working on needs to be completed then and there or whether it can simply wait until tomorrow. 

What are some challenges unique to employment law?

Employment law is a particularly personal area of law that brings with it the challenges of breakdowns in relationships and heightened human emotion. People are sometimes at their lowest after losing their job, especially in circumstances that might have been unfair or unlawful, which in turn can have a significant impact on a client’s mental health. It can also create particularly combative disputes between ex-employees and ex-employers, who may be separating in acrimonious circumstances after a long period of time. Given that most people spend the better part of their weekdays at work with their colleagues, termination of employment can be a devasting event. Employment law is also a highly politicised area of law meaning it is constantly changing depending on the government of the day. This also means that the pendulum between employee and employer rights is constantly changing. 

How do you think employment law will develop in the future?

Over the last couple of years there have been some interesting developments in casual employment, the gig economy and remote working arrangements. Each of these areas have some type of connection to flexible work and new ways of working. I think employment law will continue to develop in these areas to address the growing casualisation of the workforce and the increase in the amount of work in the gig economy. A continued push by employees for more flexible ways of working post-pandemic will also likely bring about a significant amount of change and the law will need to change with it.

What would your advice be to students who are interested in employment law, and/or applying for jobs in this area?

I would certainly recommend employment law as a practice area to students. A good place to start can be gaining some experience as a volunteer at a community legal centre or another not for profit agency that assists vulnerable workers. Employment law has also become an area of significant growth recently, meaning there are plenty of opportunities for students to obtain paid paralegal roles at private law firms. My advice would be to obtain a breadth of experience in employment law if possible. This might involve acting for both employees and employers and completing both drafting and advocacy work if possible.  

What has been the most memorable case/client in your career?

The most memorable case in my career was perhaps one of my first. I was a student volunteering at a community legal centre and my client was an international student who was being underpaid in his permanent part-time employment in the retail sector. He was working excessive hours (which were impacting his studies) and he was receiving less than the minimum wage. 

Through direct negotiation with his employer, we were able to increase his hourly rate to the award minimum and ensure that he received back pay for the underpaid amount, which amounted to several thousand dollars. As a fresh-eyed university student, it was quite rewarding to deliver an outcome to a client that had such a direct impact on both their personal and working life.  

suggested electives / experience

Electives:

• Employment Law (LAW4132)

• Law and Discrimination (LAW4129)

• Negotiation and Conflict Resolution (LAW4160)

Experience:

• Volunteer at a Community Legal Centre

• Volunteer at a not for profit organisation that assists vulnerable works

• Getting a wide breadth of experience in the Employment Law field is also beneficial

IN THE NEWS

New report reveals gig economy thrives off hardship and instability (Independent australia)

Sam Brennan writes on the recent Victorian government report on the gig economy, shedding light on the laws that work against workers and the loopholes that allow tech giants like Uber to pay 1% in taxes.

“If you are a driver for Uber, if Uber decides your pay, if you get your wage from Uber and if you can be fired by Uber, are you an employee of Uber? The answer is no, you are not an employee at all.

This highly theoretical legal distinction has very real material impacts. As an employee, you are guaranteed a minimum wage, the right to collective action, superannuation and more. But a non-employee (a gig economy worker) gets none of this.”

Link to article

Westpac owes 8000 workers $8 million in latest underpayment scandal (news.com.au)

James Hall writes on Westpac, uncovered as the latest Australian institution to underpay its workers. Westpac joins ABC, Target, Qantas, Commonwealth Bank, Sunglass Hut, 7-Eleven, Bunnings, and Super Retail Group in an ever-growing list.

“The scale of workers being ripped off infuriated Attorney-General Christian Porter who blasted corporate Australia for the “endemic problem” and threatened to introduce new industrial relations reforms to name and shame those guilty of wage theft.”

Link to article

learn more about workplace relations/ Employment law

Employment Law in Australia (employsure.com)

Learn more about the laws that govern employer-employee relationships.

Link to article

Australia – What to look out for in employment law in 2020 (Global workplace insider, 2020)

David Cross and William Dawes write on the main employment law issues to watch out for in 2020.

Link to commentary

An Overview Of Employment Law And Labour Relations In Australia

In this article, Jeremy Cousins, principal at Whitehall Workplace Law, navigates the employment law and labour relations system in Australia.

Link to article