Archer Thompson

Employment Lawyers Melbourne

Specialised Employment Law Services VIC

Employment law covers a range of matters affecting the human resources of an enterprise and the operations of a workplace.

Employers, managers, and employees are expected to understand their obligations under a matrix of laws, regulations, and policies. Education, guidance, and understanding is key to minimising issues. Effective management requires a proactive approach to potential problems and knowing when to get help to clarify legal issues and address disputes before they escalate.

Employees and executives confronting workplace issues such as disciplinary action, redundancy, termination, or dismissal should ensure their legal rights are protected by obtaining individual legal representation. These issues can be confronting and may have a long-lasting impact on an individual’s financial circumstances, reputation, and career progression.

Our Employment Lawyers in Melbourne are commercially insightful, with a depth of employment law knowledge. We provide guidance and assistance to numerous employers, executives, and employees across a range of employment law matters in Melbourne, Victoria.

The employer / employee relationship

Critical to the success of an organisation is the competent management of the employer / employee relationship across each phase of the employment cycle, whether that be at the planning, management, or dispute resolution stage.

Strategies to effectively recruit and manage staff, foster an inclusive work environment, and prevent breaches of fundamental workplace rights are essential to achieve optimum performance and minimise disruption and loss.

Employment contracts

Whether hiring at a junior or executive level, an employment contract provides clarity regarding the rights and responsibilities of the employee and the organisation. Employment contracts should be well structured and include key terms such as:

• commencement date and duration of employment, if for a fixed term;
• duties and accountabilities including reporting lines;
• remuneration and overtime arrangements;
• leave entitlements and superannuation;
• probation periods and disciplinary procedures;
• termination and notice requirements;
• performance appraisals and wage reviews;
• restraint of trade and confidentiality provisions; and
• confirmation of the legislation / award governing the employment relationship.

Enforcing post-employment restraints

Client contacts, confidential information and intellectual property are highly valuable to an organisation. Restraint of trade and confidentiality clauses in employment contracts are essential to protect against the potential misuse of these assets, particularly when an employee leaves an organisation.

Restraint of trade clauses are sometimes difficult to enforce and may be construed differently across various jurisdictions. Consequently, they must be carefully considered and drafted to provide maximum protection for the employer.

Managing performance, termination, and redundancy

The decision to terminate an employee can open the door to a potential claim for unfair dismissal. Organisations must follow sound processes for conducting performance appraisals, taking disciplinary action, and terminating employment on grounds of poor performance, misconduct or due to redundancy.

We recommend obtaining legal advice when addressing ongoing performance issues or misconduct, and before terminating an employee no matter what the circumstances.

When termination is based on redundancy, an employer may be liable to the employee if it can be shown that the redundancy was not genuine. Essentially, genuine redundancy means that the duties performed by the departing employee are no longer required to be performed by anybody. In other words, the role no longer exists.

Circumstances that could lead to an unlawful dismissal claim (also know as a General Protection or Adverse Action claim) should also be monitored. Unlawful dismissal claims arise where it can be shown that the grounds for termination were based on factors such as an employee’s temporary absence related to illness or injury, union membership, making a complaint, or participating in legal proceedings against an employer.

Bullying, harassment, and discrimination

A bullying, harassment or discrimination claim can receive adverse media attention, threaten the reputation of an organisation, and cause financial loss. To minimise potential claims, organisations should understand the types of conduct and behaviour that may breach protective workplace laws and be proactive in addressing these issues.

Developing policies and procedures

Implementing systems to deal with workplace matters such as performance, discipline, discrimination, and conflict resolution form an essential part of risk management.

Policies and codes of conduct addressing bullying and harassment can be invaluable in proving to a Commission or Court that an organisation has made genuine efforts to enforce the required conduct expected of its employees. Policies should be supported by fair processes and brought to the attention of all employees.

Working with an employment specialist helps employers stay abreast of current workplace laws and practices. Together, organisations and their advisers can implement strategies to minimise disruption and mitigate risk.

Restructuring, mergers and acquisitions

Employee benefits must be considered when organisations undergo a corporate restructure, joint venture, or merger / acquisition. These events trigger issues across the workplace, particularly regarding the transfer of employees, termination and redundancy entitlements. Directors should obtain legal advice and representation during these significant events.

Assistance for employees / executives

An employee or executive may, in some instances, take action against an employer for certain unlawful activities under the general protection provisions of the Fair Work Act, or for discriminatory conduct, harassment or bullying.

If you believe you have been treated unfairly in the workplace, it is important to seek appropriate advice.

We can also assist with reviewing and negotiating the terms and conditions of an employment contract and can represent employees during enterprise bargaining processes.

We help employers, executives, and employees to prevent, minimise and resolve workplace issues and encourage our clients to contact us for a frank and open discussion about their matter. We can assist with:

• Employment contracts, executive agreements, enterprise agreements, labour hire arrangements – drafting, reviewing, interpreting and negotiating, employee/contractor distinction
• Policies, training, enforcement, and certification
• Awards – compliance, interpretation and Fair Work Ombudsman enforcement matters
• Dismissals, redundancy and terminations including performance management and disciplinary / dismissal processes
• Bullying, adverse action, discrimination – advice, prevention, and representation
• Restraints – confidentiality, intellectual property, privacy – advice, drafting and enforcement
• Transfer / sale of business / restructuring due diligence
• Industrial relations – enterprise bargaining, union issues, industrial action, strategic advice and representation
• Whitsleblower proceedings and protection
• Representation and advocacy across all courts, tribunals and jurisdictions – unfair dismissals, adverse action, bullying, discrimination, contract enforcement and industrial action

Looking for Employment Law Firms in Melbourne?

If you need any assistance, contact one of our Melbourne employment lawyers at [email protected] or call (03) 9600 2768 for a no-obligation discussion and for expert advice.

Commercial & Corporate Lawyers

Organisations should be supported by professional advice that fosters sustainability and growth, minimises disputes and helps protect proprietors, owners, and directors from personal liability.

Our commercial lawyers in Melbourne have a strong focus on commercial law, business transactions, dispute resolution and commercial litigation. We can assist with a range of matters including:

• General advice and business structures
• Directors’ liability and due diligence
• Reviewing, negotiating, and preparing commercial and business contracts
• Transmission of business
• Cybercrime Law
• Alternative Dispute Resolution
• Commercial litigation representation in all jurisdictions​

Business structures

When commencing a new venture or buying a business, it is important to operate through the most effective legal structure. The entity you choose will depend on your personal and financial circumstances, the size and type of business, the regulatory environment within which the business operates, and future growth objectives.

Common business structures include sole proprietorships, partnerships, trusts and incorporated companies. Each have their pros and cons and vary in their complexity, reporting requirements, treatment of income tax and level of asset and personal protection for the owners.

Companies and directors’ liability

A company is an incorporated legal entity, separate from its directors and management, and able to enter legally binding transactions. They are a popular choice for operating small to medium-sized businesses as the officers and directors are not personally liable for the company’s debts, unless certain exceptions apply.

Company directors hold a position of power and trust imposing on them several fiduciary and statutory duties, including to:

• act honestly and use their powers to make decisions based on what is right for the company as a whole;
• avoid conflicts of interest and not use their position for personal profit to the detriment of the company;
• not use their position or information acquired in their role to gain an unfair advantage or benefit themselves or others;
• exercise care, skill and diligence in performing their duties;
• prevent insolvent trading.

Company directors face challenges that can place them in danger of breaching their duties. In the case of uncertainty, directors should seek urgent advice to clarify their position.

Certain defences may be available to a director who has breached a duty to avoid insolvent trading, and directors of companies facing financial difficulties should seek professional assistance early.

Advice on business restructuring

The restructure of an organisation can trigger employment-related issues such as employee transfers, termination, and redundancy. We draw on our wealth of employment law experience to provide strategic advice regarding restructuring, mergers, and acquisitions, as well as the dissolution of partnerships and joint venture arrangements.

Commercial contracts

Businesses enter into numerous commercial transactions during their lifetime. These arrangements should be governed by a written contract which captures the parties’ negotiations, sets out their rights and responsibilities and includes essential terms such as the scope of services or products to be provided, warranties and indemnities, and dispute resolution processes.

The subject matter of a contract varies considerably, from a single transaction for the sale of a product, to the ongoing provision of services over many months. The breadth of a contract will depend on the subject matter, its duration and the complexity of the transaction.

Our corporate law firm in Melbourne can assist with preparing and reviewing your commercial contracts, and provide advice and guidance on contractual disputes and breaches of essential terms.

Intellectual Property

Intellectual property comprises a range of valuable business assets based on the property of the mind or proprietary knowledge. It includes inventions, brands, trademarks, designs, patents, plant breeders’ rights, trade secrets and confidential information.

The owner of copyright material has exclusive rights to reproduce, publish, perform or make an adaptation of that work. The owner may also enter commercial hiring arrangements (a licence) giving others a right to use the protected work.

Infringement occurs when a person who neither owns the copyright material nor holds a licence undertakes an activity which is the exclusive right of the copyright holder. Our corporate law firm can assist in protecting your intellectual property and manage concerns and disputes regarding infringement of these valuable assets.

Commercial Litigation & Dispute Resolution

If you are involved in a commercial dispute, our law firm can provide expert advice, guidance, and representation in all Australian courts and tribunals. We are experienced negotiators and advocates and generally recommend alternative dispute resolution processes as a first option to resolve your matter. Should mediation not be viable or successful, we can advise you regarding your options of pursuing the matter in court so you can make an informed decision about commencing litigation.

Expert Commercial Lawyers in Melbourne

If you need any assistance, contact one of our commercial lawyers in Melbourne at [email protected] or call (03) 9600 2768 for a no-obligation discussion and for expert advice.

Dispute Resolution Lawyers 

Commercial disputes are disruptive, can damage relationships, and cause significant financial loss. Our commercial litigation lawyers in Melbourne are experienced negotiators and provide expert advice, guidance, and representation in all Australian courts and tribunals for a range of commercial disputes.

We will work with you to devise strategies to resolve your matter in the most cost effective and pragmatic way possible. We can assist with:

• contract disputes
• partnership disputes
• corporate / director / shareholder disputes
• disputes concerning mergers and acquisitions
• debt recovery and insolvency disputes
• whistleblower proceedings and protection
• defamation proceedings
• copyright and intellectual property infringement disputes
• cybercrime proceedings
• Supreme Court injunctions
• freight disputes
• Administrative law including constitution and election disputes

Alternative Dispute Resolution

Many commercial disputes can be resolved using alternative dispute resolution processes such as mediation, conciliation, and negotiation. Alternative dispute resolution is generally less formal and less expensive than litigation and can offer more flexible solutions than what might be achieved in court. If mediation does not resolve the matter completely, it may still prove beneficial in narrowing the issues in dispute. The process can also help preserve the commercial relationship between businesses that may have continuing contractual obligations with each other.

In most cases, we will recommend alternative dispute resolution to resolve your commercial matter and consider a range of options to achieve a viable, effective solution.

If mediation is unsuccessful or not viable in your circumstances, we will provide a strategic plan outlining the cause of action or defence, and the possible outcomes based on an assessment of the facts and evidence available to support your case.

Commercial Litigation

Litigation refers to the commencement of legal proceedings with the aim of resolving a disputed matter through a court. A civil court dispute generally arises when two or more parties are unable to resolve a matter concerning their respective legal rights and obligations. The parties to the dispute may comprise individuals, corporations, government bodies or other entities.

A cause of action must be based on a breach of legislation or the common law, and is identified in the documents filed with the court to start proceedings.

Legal proceedings can be expensive and time consuming but may be the only option if the parties to a dispute are intractable, there is a need for urgent orders such as an injunction, or when parties must defend allegations made against them.

The nature of the proceedings and monetary value of the remedy sought (where relevant) will generally determine the court or tribunal in which to file proceedings.

Going to Court

Court proceedings run to a strict timetable and litigation requires thorough preparation.

Once an action commences in court, the parties must comply with practice directions and court processes regarding the filing and service of documents, participation in dispute resolution (where relevant), the format and filing of evidence and attendance at directions hearings, status conferences and pre-trial hearings.

Evidence may be led by documents, statements, video or the like, to support the alleged breach and the strength of each parties’ evidence will be tested in the court room. Witnesses may be called to support your case or that of your opponent’s.

By the time a party instigates court proceedings, the relationship between opposing sides is already contentious. Court proceedings are complex and often involve several legal issues and areas of law. They can become protracted and expensive and have a significant impact on the health of a business and its owners.

Effective dispute resolution, whether informal or litigated, requires a comprehensive knowledge across various legal areas and strong negotiation, advocacy, and case management skills. Our litigation team works closely with clients to ensure they are appropriately informed throughout the proceedings, are aware of their options and prepared for their case.

If you need any assistance, contact one of our commercial litigation lawyers in Melbourne at [email protected] or call (03) 9600 2768 for a no-obligation discussion and for expert advice.

How our Debt Collection Lawyers can help

Regular cashflow is essential for any organisation and without it sustaining a viable business is not possible. Chasing unpaid debts is a major time and money waster for business owners and account managers. Our debt recovery lawyers in Melbourne can assist with recovering your unpaid debts or with legal disputes regarding the payment of money. As a law firm, we have expertise in:

• Alternative Dispute Resolution, negotiations, and mediation
• Issuing letters of demand and communicating with debtors
• Preparing and serving Statutory Demands
• Applications to set aside a Statutory Demand
• Issuing Statements of Claim
• Enforcement proceedings including Summons for Examination, Warrants to Seize Property, Attachment of Debt and Earnings Orders and Instalment Orders

Using the correct process to recover & collect unpaid debts

Various factors will determine the most appropriate process used to recover an unpaid debt. An informed decision must be made that considers:

• the legal entity of the debtor – whether that is an individual, partnership, company or other structure;
• the total amount outstanding and how long it has been overdue;
• the likely costs of attempting to recover the debt – legal fees, court filing fees, service and agency fees;
• whether the debtor has raised a dispute regarding the unpaid amount;
• the likelihood of the debtor being able to satisfy any court orders to pay the debt – recourse to personal assets of individual debtors / sole traders, company assets;
• if the debtor is a company, whether the directors have caused the company to trade whilst insolvent or whether the directors have given personal guarantees for the debt;
• the appropriate court in which to start proceedings, should this become necessary and whether the recovery process is governed by specific legislation.

We will step through these factors to propose a strategy that is likely to deliver the most efficient and cost-effective outcome in the circumstances.

Letter of Demand

A letter of demand is often the first step in persuading a slow debtor to take action. The letter of demand should clearly state the amount owed, the goods or services to which it relates, and how the outstanding amount should be paid. The letter should threaten legal action (including a claim for the recovery of legal fees) if the debt is not paid by a specified date.

Statutory Demands

After a statutory demand is served on a company, a ‘presumption of insolvency’ arises if, after 21 days the debt remains unpaid, or the company is unable to have the statutory demand withdrawn by the creditor or set aside by a court.

The Corporations Act 2001 prescribes the correct format and procedures that must be adopted when preparing and serving a statutory demand. Failure to follow these processes can be costly for a creditor and may lead to costs orders being made.

The demand must state that payment be made within 21 days and specify where the debt may be paid. Unless a judgement has been issued in favour of the creditor, the demand must be supported with an affidavit attesting to the existence of a specified debt that is due and payable.

Defending a Statutory Demand

If you are a director of a company which has been served with a statutory demand, you should obtain urgent legal advice. The consequences of failing to deal with a statutory demand can be significant, as inaction can result in the creditor commencing winding up proceedings to have the company placed into liquidation.

Generally, after being served with a statutory demand, a debtor company has three options:

• pay the amount, if it is owing;
• negotiate with the entity issuing the demand to reach an agreed solution;
• apply to have the statutory demand set aside under the grounds specified in the Act which generally include a genuine dispute regarding the debt, an offsetting claim, or, in some circumstances, that the demand is defective.

Debt Recovery Services in Melbourne

When you are already incurring loss because of slow payers, it is essential that the debt recovery process used is efficient, cost effective and delivers a sound commercial outcome.

Our law firm provides practical debt recovery and collection solutions in Melbourne focused on minimising further loss and getting quick results. Our solicitors are experienced negotiators and avoid expensive litigation wherever possible. If court proceedings are necessary, however, we are strong advocates and can represent our clients in all courts and jurisdictions in Australia, for a range of debt recovery matters.

If you need any assistance, contact one of our debt collection lawyers at [email protected] or call (03) 9600 2768 for a no-obligation discussion and for expert advice.