The Footnotes

ACCOUNTING, BANKING & FINANCE

From bullying & assault to injuries and tantrums: Hear from an employment lawyer

We explore one of the most sensational cases in rugby league history

In 2011, the Qantas ground staff took a one-hour strike on a Wednesday afternoon. They were disputing their pay. In that time, 6000 passengers were affected, 68 news publishers covered the event, more than 80% of the Australian population were exposed to the press and Qantas shares took a hit. Such a sensation. Was it just over a few dollars per hour? Yes and no. It was, many would later say, a disaster waiting to happen when a huge corporation fails to see that people are the foundation of every business.

Four years later and just as topical, late on Anzac Day, an SBS journalist Scott McIntyre made highly inappropriate and disrespectful comments via his Twitter account that were seen to offend the SBS audience. SBS moved swiftly, sacking McIntyre the next day, reportedly following his refusal to remove the tweets from public view as directed.

Maybe the most devastating case of them all, in 2014 Alex McKinnon’s life changed forever when he suffered a devastating spinal injury in Round 3 of the 2014 NRL Premiership season. Alex was an employee of his club, the Knights, and his lost future earnings and his substantial cost of recovery were to be calculated in a club liability pay out.

It’s an industry that lights up our headlines and regulates our every day. It both challenges and rewards every stakeholder involved, and may be the rewarding career path you’ve been seeking. Have you ever considered a career in the employment law field? We spoke to Giuseppe Carabetta; a well regarded police employment law specialist in the country, a close advisor for our police associations , and a Senior lecturer at the Sydney University business school about the roles, path to entry, case work and his career in the ever changing industry.

Firstly, what is employment law?

It’s a pretty specific niche within the business law sector, but within this umbrella you’ll find discrimination law, harassment, bullying in the workplace, codes of conduct, “all the juicy stuff” Giuseppe tells us. Beyond this, there are contractual issues, “let’s say that someone has done something online, through social media that directly impact their employment; you work to uncover if they’ve done something wrong? And what are the consequences that flow from that? Does the company have a social media policy or code of conduct in the first place?

Or even in sport, for the league lovers, you’ll remember when Mitchell Pearce was recently in trouble for allegedly breaching a code of conduct – that’s potentially a contractual breach that falls within employment law”.

At an industry level he tells us, “you are looking at collective bargaining (which is the process of negotiating the terms of employment between an employer and a group of workers). In 2011 – 2012, the Qantas saga, when they grounded planes and went to arbitration, that was pretty exceptional”.

With Australians spending more time behind their desks than any generation before, the need for employment law specialists is only growing. Though the vagueness of the term “employment law” can deter students when considered alongside easily definable fields that may sound more exciting; it is important to realise the roles within the industry are as diverse as the cases. There are ‘legal people’ like Giuseppe, but he explains for those looking to specialise in the industry, the opportunities are far wider, “There are Barristers, there are solicitors who brief the barristers, these people are specialists in employment law, then there are legal researchers – this is a huge factor”. Though, for those not considering a degree in law, he teaches us that, “at a base level, the cold front for the industry is with workplace relations or human resource professionals. They take a preventive role; they will address employment issues so that people don’t need to speak to people like me. They are usually commerce graduates who’ve studied industrial relations or management.”

Becoming an academic employment lawyer, Giuseppe believes he can help society via policy based research and enjoys that he can maintain independence by avoiding the corporate ladder of traditional lawyers, while helping a lot of people.

Take his work on police employment law for example, in his industrial fight for, “the most essential people in emergency services” to have recognised rights for employment law rights.

You see, technically they aren’t employees. “Police are considered to be holders of this ancient public office, and the courts have taken a view that started in 1906, saying that because, unlike most other workers, police officers derive their powers directly from the law, they cannot be considered bound by an employer or employee relationship”. By virtue of their job, protecting the streets and borders of Australia, they naturally have the ability to act without instruction. This legal theory means that ‘technically’ there is no control over their discretionary powers, “The reality of course, is very different, it’s a legal fiction.”

Police are considered office holders, and they have no ability to strike; which for a group that is 99% unionised and which exists in a country operating a collective bargaining system, leaves a huge hole in the current national employment law framework.

In a profession where the ‘scope of duty’ is difficult to define, “their private lives are governed by all kinds of policies. The codes and policies in place on them higher standards than other workers”, and too, where there is a thin line between when they are even considered on, or off duty, it leaves an uncertain employment environment for our police.

We speak about sports law, another interesting speciality within the employment law industry.

“I generally deal with contact sports, rugby union, league, even equestrian;” where players who traditionally have very short career spans, coupled with a very high risk of injury, need complex insurance coverage. Giuseppe tells us that while he doesn’t want to be controversial, “the codes are getting much better” there is certainly, “a huge hole in the protection of players, in terms of potential legal liability that they may face for wrongful conduct on the field.”

We only have to look to recent history to prove the point, the famous and harrowing McKinnon case. Giuseppe pragmatically explains that, “The players owe a duty of care to fellow players. But because the players are employees of the clubs, the clubs can be held vicariously – or indirectly – liable for any breach of the duty by their own players.” Vicarious liability is the focus normally, but McKinnon had at one point said he would pursue both the defending club (Storm), for the alleged breach by the players, and the league for their alleged breach in not going far enough in stamping out dangerous play”.

On the industry itself:

A career of fast paced and emotionally trying disputes, from the outset the industry sounds as if it has taken flight from a Hollywood blockbuster. Though law is far from bantering with judges and wooing the witness stand. Giuseppe speaks of reading, learning and then challenging yourself to learn more. He says that there are days that you’ll need to lock yourself in a room and sift through legal content – not just in his role as a legal researcher but also for lawyer practitioners. Though, he also says that to succeed in the employment law industry you’ll need more than the theory.

Given the chance to speak to his younger self, he says to never forget the importance of networking; it’s a career fundamentally about helping people, and maybe coincidently, networking with key groups and people is just as important for success as learning the content.

 

From bullying & assault to injuries and tantrums: Hear from an employment lawyer
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