For businesses operating in Sydney, navigating the complex and constantly evolving landscape of Australian employment and Work Health and Safety (WHS) laws is a major challenge. The role of a Sydney employment solicitor is not merely to litigate disputes, but primarily to serve as a proactive risk manager and compliance expert, ensuring the business avoids costly penalties, underpayment claims, and reputational damage.2

The solicitor’s compliance function spans three critical areas: foundational documentation, preventative risk management, and regulatory incident response.

1. Foundational Documentation and Contract Compliance

The relationship between an employer and employee must be legally sound from the very start.3 An employment solicitor ensures the foundational paperwork protects the business and adheres strictly to the law.

  • Contract Drafting and Review: Solicitors draft legally robust employment contracts tailored to specific roles, ensuring compliance with the National Employment Standards (NES) and any applicable Modern Award.4 This involves correctly incorporating, or “setting off,” a higher salary against Award entitlements (like penalty rates and overtime) to prevent expensive underpayment claims. They also draft enforceable clauses protecting the business, such as non-compete and confidentiality agreements.5
  • Policy Development: They develop and review internal policies (e.g., Anti-Discrimination, Harassment, WHS, Social Media, and Performance Management) that align with the Fair Work Act and NSW’s Anti-Discrimination Act.6 Crucially, they ensure policies reflect the employer’s positive duty to prevent sexual harassment and other unlawful conduct.
  • Award Interpretation: Solicitors advise businesses on correctly identifying which Modern Award applies to which employee and accurately interpreting complex clauses related to pay rates, classifications, and flexible work arrangements—a common source of compliance failure.

2. Proactive Risk Management and Auditing7

Scales of justice and a gavel near blue law books.

The solicitor acts as an external auditor, identifying compliance gaps before regulators (like the Fair Work Ombudsman or SafeWork NSW) or employees raise a formal dispute.

  • Workplace Compliance Audits: They conduct comprehensive “HR Health Checks” to review payroll practices, record-keeping systems (including timesheets and payslips), and leave liability calculations. This proactive auditing helps quantify and correct any accidental wage underpayments under legal professional privilege before the FWO can initiate a formal investigation and impose penalties.
  • WHS and Due Diligence: Solicitors advise directors and officers on their personal obligations regarding due diligence under the Work Health and Safety Act 2011 (NSW).8 They review WHS management systems, risk assessments, and incident reporting procedures to ensure the company meets its primary duty to ensure, so far as is reasonably practicable, a safe environment (including managing psychological hazards like bullying).
  • Training and Education: They develop and deliver mandatory training programs for managers and staff on critical compliance topics, such as handling complaints, conducting impartial workplace investigations, and understanding adverse action/General Protections risks.9 This training helps the employer establish the “all reasonable steps” defence against claims of vicarious liability for employee misconduct.

3. Regulatory Incident Response and Defence

When a compliance failure leads to an external investigation or legal threat, the solicitor manages the process to protect the business’s interests.

  • Responding to Regulator Inquiries: They manage communications with the Fair Work Ombudsman (FWO), SafeWork NSW, or other regulatory bodies, ensuring that information provided is accurate, legally privileged (where appropriate), and minimises legal exposure.10
  • Workplace Investigations: They conduct or advise on independent, procedural fair investigations into serious employee misconduct or discrimination claims.11 An impartial investigation is the single best defence an employer has against a successful subsequent legal claim (such as a General Protections or Unfair Dismissal claim).
  • Defence Against Claims: If a breach has occurred, the solicitor provides strategic defence, negotiating terms of settlement or representing the client in the Fair Work Commission or Federal Courts, aiming to mitigate penalties and limit financial liability.12