The three biggest issues in the employment law space within Australia

ELM: David, you’ve been the Chairperson for our HR Law Masterclass series for the last couple of editions – both in Sydney and Melbourne. In your perspective, what are the key things you’ve taken away from the events collectively?


  1. Employment law is always changing. Good HR managers will know that the subtleties in the various caselaw decisions can be significant. Consistently keeping abreast of the changes allows you to incrementally build your capability rather than attempting to gather it all in one go.You gain confidence and access to different interpretations by networking with other people in the HR space who are encountering and responding to a lot of the similar issues that you are. Sometimes it is just good to know that you are ‘not the only one’.
  2. Get the most out of your participation by avoiding (if possible) the constant distraction of your mobile phone sending you emails and text messages. If you were in court or on a plane you wouldn’t be able to respond – why should your attendance in a conference be any different? That person sending you the message will cope without your immediate response and you will only really get the full value from this type of session if your concentration is on the presentation.
  3. Don’t feel the need to write down everything the presenters say verbatim. Allow the content from the presenter to ‘digest’ with you and utilise the activities book to supplement the need for additional writing. Too often if you spend all your efforts trying to capture everything you will end up missing the really important aspects.
  4. Work out in advance what questions you really need answered – then ask them! It is a myth that presenters don’t like to be ‘interrupted’ during their presentation with questions. My experience in talking with a lot of presenters over the time is that they actually ‘crave’ questions during the presentation. It gives them a break, adds some colour and movement the more importantly addresses the very purpose that they are there to do – give you valuable insights and the benefit of their experience.

ELM: What are you seeing as the three biggest issues in the employment law space within Australia; what sort of questions are clients coming to you with – what has been your advice for them on these?


  1. Mental health generally is an aspect which has significantly risen to the forefront in the last two or three years and I consider that trajectory is unlikely to abate in the near future. Whilst it may seem overly simple, the best advice I can give in this area is to not ignore mental health. Too often workplaces have responded by trying to ignore mental health, pretending it doesn’t exist or worse attempting to resolve such issues by trying to implement illogical solutions such as a redundancy to make the problem go away. Workplaces need to deal with mental health issues with a definitive plan and be prepared to adjust that plan as circumstances change.
  2. Fitness for work (outside of mental health) continues to be a topic which causes ongoing consternation for HR practitioners and their workplaces. But it needn’t be so. Most of the problems, like with mental health, arise out of the fact that workplaces generally attempt to take decisions which presuppose that a fitness for work issue can, or will, never be able to be adequately resolved with reasonable ‘every day’ support mechanisms. By adopting a risk assessment approach, with appropriate medical evidence (not the often ‘well-intentioned guesswork’ of operational staff) high performing workplaces are able to appropriately manage their fitness for work issues and have employees return to work more productive and effective than the alternative.
  3. Managing poor performance remains at the heart of HR practice. Our advice, which has been recently endorsed in a number of FWC decisions, has remained consistent for a number of years. That is – stop overly relying on unnecessary and administratively burdensome template forms once or twice a year, and start having ‘crucial conversations’ with your employees on a regular basis. The recipients of our advice have achieved ongoing high-performance and more importantly small issues which are often left ‘in play’ for too long a consistently and effectively addressed before they mount into something more significant.

ELM: You’re one of the few employment lawyers we’ve come across that has worn both the HR Manager hat, as well as that of Partner at a law firm. How do you think your experience has made you think differently about employment law in general? And, if your current hat could have advised your former one of one thing, what would that have been?

David: My experience as an HR Manager and a Partner of a law firm has taught me over and over again that people management is actually best conducted by a person’s actual line manager supported by HR and legal expertise – not the other way round. As soon as line managers ‘outsource’ their management responsibility to HR/ legal they give up their predominant reason for ‘being’ in the organisation and generally cause unsatisfactory outcomes for it. I remain unconvinced that there are ‘people based’ solutions and ‘pure legal’ solutions. The two are not mutually exclusive. In fact I think it is no coincidence that the best performing organisations consistently adjust the balance between the two on a case-by-case basis.

If my current self would been have been able to advise my former self I would have wished that they would have explained the adjustable balance approach between the people and legal solutions to me sooner. HR managers often struggle to be as persuasive as ‘others at the executive table’ because they only rely on ‘people based’ solutions. Accordingly they tend to get pigeonholed as being strong on ‘soft skills’ and weak on ‘hard skills’ – which I think is a grossly unfair over generalisation. I think today’s high performing HR practitioner has both solutions at their disposal and they are prepared to adjust the skill sets as the need arises not as if they were a pure 50:50 solution.

ELM: We’ve had over 1,548 people attend the HR Law Masterclass series over the last five years David. It’s been a consistently valuable event for the industry. Being chair for the next Melbourne one on 13 September; what are you looking forward to the most that others signing up can look out for too?

David: At the risk of scaring the marketers I am going to say “more of the same”. I can say that because my don’t see that as actually meaning the same as before. On the contrary, throughout my involvement with ELM I have always walked away being impressed at the ability of the offering to consistently reinvent and reinvigorate its self to provide valuable insight and information to employment law and HR practitioners. Probably the best example I can give of this has been the continually increasing high-quality ‘takeaway’ materials (workbooks) that I can guarantee will remain one of the most used resources available for a busy practitioner. The second example which has really impressed me has been the introduction of more panel discussions. Panel discussions used to be just a bit of a ‘talkfest’ but my recent experience has demonstrated that with an engaged audience prepared to ask good questions you get a multifaceted/layered answer from some of the best legal minds in the business. You just can’t buy that type of feedback anywhere else.

David Dilger will be chairing the HR Law Masterclass in Melbourne this September. You can learn more about the event here.