Running a business in Australia means managing people — and managing people means navigating a dense web of legal obligations. Employment law touches every part of the employee lifecycle: how you engage someone, how you pay them, how you manage their performance, and how you end the relationship if it comes to that.
An employment lawyer's job is to help you get each of those steps right. That means drafting watertight contracts before someone starts, helping you understand what a modern award actually requires, and standing next to you when a dispute lands at the Fair Work Commission. This article explains what employment lawyers do, when you need one, and where going it alone is likely to cost you more than the advice would have.
The key areas covered are:
- Engaging staff correctly from day one — contracts, classifications and the employee-versus-contractor question
- Ongoing compliance with modern awards and the National Employment Standards
- Managing performance, misconduct and sensitive workplace issues
- Ending employment lawfully, including redundancy
- Responding to disputes, regulator enquiries and formal claims
Engaging staff correctly from day one
Contracts and what they actually need to cover
A written employment contract is not just a formality. It is the document that defines the employment relationship and sets the framework for resolving disputes later. A well-drafted contract covers the role and duties, ordinary hours, remuneration, probation, confidentiality obligations, intellectual property ownership, and — where appropriate — post-employment restraints.
Employment lawyers draft contracts that work in practice, not just on paper. That means tailoring the restraint clauses to what a court is actually likely to enforce, ensuring the IP provisions capture the work your employees create, and making sure the contract sits correctly above (not below) any award or enterprise agreement that applies.
The employee-versus-contractor question
One of the riskiest classification errors an employer can make is treating a worker as an independent contractor when the law considers them an employee. This is commonly called sham contracting, and it exposes a business to liability for unpaid wages, entitlements and penalties.
The Fair Work Ombudsman confirms that calling a worker a contractor in a written agreement does not automatically make them one. Since 26 August 2024, certain businesses must use a "whole of relationship" test — looking at the substance of how the work is actually performed — to determine whether a person is a contractor or an employee. An employment lawyer can assess an engagement before it starts and structure it correctly, or advise on what to do if an existing arrangement is at risk.
Compliance with modern awards and the NES
Modern awards
Most employees in Australia are covered by a modern award — an industry or occupation-based instrument that sets minimum pay rates, penalty rates, allowances, overtime entitlements and rostering conditions on top of the National Employment Standards (NES). There are more than 100 modern awards, and an employee might be covered by one you would not immediately expect.
Getting award coverage wrong — including misclassifying an employee's work level — leads to underpayments that accumulate over time and can result in significant back-payment obligations. Employment lawyers map award obligations for your workforce so payroll is correct from the outset, and audit existing arrangements when awards change.
The National Employment Standards
The NES under Pt 2-2 of the Fair Work Act 2009 (Cth) set a floor of minimum entitlements that apply to all national system employees regardless of any contract, award or agreement. They cover maximum weekly hours, flexible working requests, parental leave, annual leave, personal and carer's leave, compassionate leave, community service leave, long service leave, public holidays, notice of termination, redundancy pay, and access to the Fair Work Information Statement.
No contract or agreement can strip away NES entitlements. An employment lawyer helps you understand what you must provide, when, and in what form — including where state-based long service leave laws layer on top.
Casual employment and the conversion pathway
Casual employees engage on a different basis to permanent staff and receive casual loading in lieu of certain entitlements. Since 26 August 2024, an eligible casual who believes they no longer meet the definition of a casual employee can give their employer written notice to convert to permanent (full-time or part-time) employment. Under the employee choice pathway, a casual employed for at least six months — or 12 months with a small business employer (fewer than 15 employees) — can exercise this right.
Employers must consult with the employee and respond in writing within 21 days. An employment lawyer can help you prepare for that process, assess whether a proposed refusal is defensible on operational grounds, and draft the required response.
Managing performance, misconduct and sensitive issues
Performance management
Performance management is a process, not a single conversation. Employment lawyers help businesses set up performance improvement plans, document warnings in a way that creates a clear record, and run the process in a manner that would withstand scrutiny if the employee later brings a claim.
The key risks here are procedural: failing to give the employee a genuine opportunity to respond, relying on undocumented concerns, or conflating poor performance with misconduct. Getting the sequence right protects the employer if the matter ends in dismissal.
Misconduct investigations
Serious misconduct allegations require a structured, proportionate response. That typically means assessing whether interim suspension is appropriate, scoping the investigation, collecting evidence, interviewing witnesses, issuing a show cause notice, and making and communicating a finding. An employment lawyer can design and run that process, or advise in-house HR teams on each step. A procedurally fair investigation is the foundation of a defensible outcome.
Sensitive leave and adjustment requests
Managing an employee's return to work after illness, an injury, or a period of personal difficulty involves multiple overlapping obligations — under the NES, state work health and safety laws, and anti-discrimination legislation. An employment lawyer can advise on what medical information you are entitled to request, what reasonable adjustments look like in your specific context, and how to make lawful decisions about duties and hours without inadvertently creating a discrimination or adverse action exposure.
Ending employment lawfully
Dismissal and the minimum employment period
Dismissal needs to follow a fair process. For most employers, the minimum employment period before an employee can bring an unfair dismissal claim is six months of continuous service. For a small business employer — defined under the Fair Work Act 2009 (Cth) as an employer with fewer than 15 employees — the minimum period is 12 months. Small business employers must also follow the Small Business Fair Dismissal Code.
Even during a probation period, ending employment without a fair process and proper notice can generate a claim. An employment lawyer will confirm the applicable notice requirements, help you document the process, and — where appropriate — advise on a negotiated separation that closes the matter cleanly.
Redundancy
A genuine redundancy requires a legitimate operational reason, consultation with the affected employee (and any relevant award or agreement obligations about the consultation process), consideration of redeployment options, and payment of redundancy entitlements under the NES. Entitlement to redundancy pay under the NES requires at least one year of continuous service, and the amount scales with length of service.
Small business employers are generally exempt from the NES redundancy pay obligation, but must still follow a fair process and give correct notice. An employment lawyer maps the obligations, calculates entitlements, prepares communication, and helps you avoid the mistakes that turn a straightforward restructure into a protracted dispute.
How Artificer Legal can help with employment matters
Disputes and Fair Work Commission proceedings
If a current or former employee lodges a claim, time pressure is immediate. An unfair dismissal application must be filed with the Fair Work Commission within 21 calendar days of the dismissal taking effect. A general protections dismissal application carries the same 21-day time limit. Missing the deadline removes the claim from the picture, but an employer who receives one still needs to respond promptly and correctly.
An employment lawyer will assess the merits of the claim, prepare your response, and represent you in conciliation (which resolves the majority of claims) or in a formal hearing if it proceeds that way. We also assist with underpayment allegations, Fair Work Ombudsman investigations, and union or regulator enquiries.
Building systems that prevent disputes
The most cost-effective use of employment legal advice is before something goes wrong. Artificer Legal works with Australian businesses to:
- Draft and review employment contracts, contractor agreements and offer letters
- Audit award coverage, employee classifications and pay structures
- Prepare workplace policy suites — including conduct, bullying and harassment, leave, and acceptable use policies
- Advise on performance management processes and investigation procedures
- Review proposed dismissal or redundancy processes before they are implemented
The goal is fewer surprises: clear documentation, consistent processes and managers who know what the rules are.
Getting employment law right matters more than most business owners realise
Employment law in Australia is a system of overlapping obligations — statute, awards, contracts, codes and common law — and the consequences of getting it wrong are real. Underpayments generate back-payment liability. Poor dismissal processes generate unfair dismissal claims. Misclassified contractors generate entitlement claims. None of these outcomes is inevitable with the right advice.
Key points to keep in mind:
- The Fair Work Act 2009 (Cth) and modern awards set minimum standards that cannot be contracted away.
- The distinction between an employee and a contractor is determined by law, not by the label in a contract.
- Unfair dismissal and general protections applications both carry a strict 21-day time limit — once missed, it cannot be recovered without a compelling reason.
- Small businesses (fewer than 15 employees) operate under slightly different rules, including a 12-month minimum employment period and the Small Business Fair Dismissal Code.
- Proactive audits, correct contracts and documented processes are significantly cheaper than responding to a claim after the fact.
If your business is facing an employment issue, or if you want to make sure your employment practices are in order, contact Artificer Legal for practical, plain-English advice tailored to your situation.