Up against the immovable beast: Story of a young employment lawyer

She explains, “I was supposed to do medicine, and I missed the signup date for the UMAT exam. So I decided the next best thing would be law, because I liked the TV show Suits.”

She continues, “My plan was to transfer [into medicine] after one semester. And then I really enjoyed my first semester in law and thought, ‘oh, it actually makes a lot of sense for me to continue.’”

It was the fundamentals of law that seized Feldman-Gubbay’s attention. She found studying Foundations of Law, and particularly discussing Marxist and feminist legal theory, stimulating. “I enjoy arguing about ideas, really getting into the nitty gritty – and there’s a lot of that in studying law.”

So Feldman-Gubbay continued her law studies at the University of Technology, Sydney (alongside a creative writing degree), and found herself with a range of appealing pathways.

Early exposure

During her studies, Feldman-Gubbay went on exchange to London. There she volunteered in a community legal centre which provided housing law advice to members of the local community. In this role, she had her first face-to-face client interactions. This experience was formative, showing her that “people’s issues, even if they’re ‘small’, are important.”

Towards the end of her studies, as part of her PLT Feldman-Gubbay had the opportunity to see the law applied in a range of environments.

The first was shadowing and assisting a criminal barrister, which aligned with her career aspirations at the time: “I wanted to have a focus on something to do with violence against women and sexual violence specifically and I thought I wanted to do that through criminal law, prosecuting sexual assaults and similar cases.”

However, her work with a criminal barrister coincided with a second PLT engagement: “I applied to do PLT at Redfern Legal Centre (RLC) … I pretty much fell into the employment team. They said, ‘this is the opening’, and so I began.”

Alongside RLC, Feldman-Gubbay held a similar role at Shopfront Youth Legal Centre in Sydney’s Darlinghurst. As she explains, the centre “provides mostly criminal law advice to people under 25 who are either homeless or particularly disadvantaged in some way.”

These two positions helped guide her future career path. Reflecting on her PLT role at RLC, Feldman-Gubbay says, “I didn’t get to do any provision of advice, because I wasn’t a lawyer yet. But I did get to do the preliminary legal analysis of our intake notes on clients when they first approach RLC for help. My job was to read through everything and then say, ‘This is what I think the issue is’. I would then provide a summary to our lawyers, who provide the advice. It was really formative for me as a lawyer, in being able to quickly figure out what the key issue was.”

Rapid growth in the professional world

After graduating from UTS, Feldman-Gubbay began a graduate role at law firm Dentons: “I was supposed to be rotating in different teams, [but] I started in the employment team, and really loved it. The partner and I … decided that it would be best if I just stayed.”

“For the majority of my first year there, it was just me and the partner,” she adds. “So it meant that we had this very close professional relationship.”

This direct daily engagement with a partner is “quite unusual”, she says. “Usually, there’ll be a couple of different levels [between a partner and] a graduate solicitor, but the fact I was sending my work straight to her meant that I was getting really good, decisive feedback.”

This work added great value to her development in legal thinking: “at Dentons I was occasionally required to provide niche written legal advice to our clients. This meant I was able to take my time and research a legal idea. That was really fun, to be able to deep dive into something, to be more theoretical.”

Life as a community centre employment lawyer

After two years at Dentons, Feldman-Gubbay was offered the opportunity to return to RLC – this time as an Employment Rights Legal Service Solicitor. The major part of her role, she says, is “advice work, whether it’s providing my own advice to clients directly or reviewing the advice our volunteer lawyers have provided our clients.”

Sometimes clients require more than just a one-off advice session, Feldman-Gubbay says.

“For example, a volunteer lawyer might give advice to someone who’s been underpaid, and a key part of the advice will be figuring out the actual underpayment. That would be a legal task I could do in the background.

“I will have a look at the award, look at what rates applied, and do the actual calculation according to the client’s hours of work. And then, depending on what was needed, I might send the client the underpayment figure or a letter of demand they can send to their employer.

“At any given time,” she continues, “I will probably have five open matters – five legal cases that I’m running to represent clients, and honestly, if I could open representation cases for every client, I would. When we don’t have capacity to run matters internally, we refer clients out to various firms we have amazing pro bono relationships with.”

To level the playing field

With the volume of inquiries that Feldman-Gubbay’s team receives, it is necessary to have a system to prioritise and select clients: “We try to prioritise legal test cases that have a strategic element that’s related to a broader RLC goal, or policy reform. [We also prioritise cases in which] the client is particularly vulnerable [and for whom] the system is not built in a way that they would be able to represent themselves effectively.”

There are many barriers to accessing employment support in the legal system, Feldman-Gubbay says: “Employees generally don’t have legal representation across the board. That’s what the data shows us. And that also makes sense within the wider employment law context – for example, people making dismissal related claims at the Fair Work Commission will, by definition, be people without an income and therefore far less likely to be able to afford private representation.”

It’s for these reasons her team takes on employees only: “to level the playing field, but more so to provide a really vital service where there is a gap.”

She adds, “We prioritise advising particularly vulnerable clients, such as migrants, people experiencing financial distress or homelessness, Aboriginal and Torres Strait Islander people and people with disability.

“Ideally, everyone’s being paid correctly in the first place. But we don’t live in that world, and people are being exploited all the time. It’s widespread, it’s not an anomaly. And for particular demographics, it’s almost more likely [than not] that you will be exploited.”

For Feldman-Gubbay, it’s the experiences of real personal change that are most rewarding. She recounts a career highlight.

“That was running and winning my first trial […] It was an underpayment claim, and the financial value of the claim was quite small – less than $2,000, which, as far as legal cases go, is not worth a lot.”

The client, she explains, “was experiencing homelessness specifically because they hadn’t been paid. This was a migrant worker who had [started in a new role], and then worked for a couple of weeks and was never paid.”

“[The employer] afterwards asserted that the client was a work experience student, and that’s why they were not going to get paid.”

Feldman-Gubbay adds, with a touch of sarcasm: “There definitely are some legitimate work experience arrangements. But in general, if you’re in a work experience situation, and it’s not through any sort of registered tertiary education provider, then it’s probably not actually work experience, and you should be getting paid. And in the end, we got an order in the client’s favour.”

“I love that we were able to value that case not in just financial terms,” Feldman-Gubbay says.

“The case was not worth a lot of money – it would never have been run by a law firm. But we got to say to the client, ‘This is important – it’s a significant amount for you so it’s a significant amount for us. And we’re going to take it the whole way.’”

Up against the immovable beast

Despite these rewarding experiences, Feldman-Gubbay acknowledges a resounding difficulty that she feels as a lawyer: “I struggle to be able to feel we’re actually making a difference. Sometimes it’s hard to be motivated, because in the time we help one client, ten more people come to us for help. And we’re only one community legal centre – it’s the same across the board. Community legal centres are being inundated with employment matters.”

“Sometimes it feels like we’re just up against the immovable beast that is exploitation,” she says. “That’s demotivating sometimes.”

It’s this reality of the system that can make it sometimes difficult to engage with clients.

“Oftentimes, you’ll have cliens that are, rightly so, really aggrieved about something that’s happened to them, and they’ve been treated unfairly – but they haven’t been treated unlawfully. It can be hard to give frank advice to someone, that they’re not going to be able to get their desired outcome, and that there isn’t an actionable claim.”

This dilemma weighs on Feldman-Gubbay: “It’s an ongoing challenge, I guess, to let someone down, but also still communicate to them that even if what they’ve gone through wasn’t illegal, this doesn’t mean it wasn’t wrong.”

Despite this, Feldman-Gubbay says, there is quality and efficacy in Australian employment law. “Luckily, the employment space is very self-represented-litigant friendly. It’s designed for people who don’t have lawyers. So we’re lucky [in the RLC employment team] that generally our role is to empower people to bring their own claims.

“The legal framework for employment law in Australia is really good. Compared to a lot of countries, we have a really strong industrial relations system. […] If everyone was compliant with the laws, I think we’d have a pretty good system. For example, the minimum wage we have is actually really good. The rules that we have around overtime are really good. The rules about discrimination and sexual harassment are actually the most robust in an employment setting. Employment law as a framework is actually really great.

“And that’s why I love practising employment law,” she says, “because I like enforcing those rules. That’s also why I thoroughly enjoyed working at Dentons, because my role was to help employers comply with the laws – and the laws are good.”

Education is the answer

Though she is at an early stage in her legal career, Feldman-Gubbay has been thinking about what long-term structural change might look like.

“Honestly, I think that education is the answer. There are obviously legislative issues, and there are reform things that we’re working on.”

“But in terms of actually destroying the beast, I think that it has to be proactive and not reactive. And so it has to be education, so that people aren’t exploited in the first place, because they can identify when someone is exploiting them. And they’re empowered to say, ‘this is exploitation’.

“I think that every single high school student, as soon as they are able to work, should be educated on the National Employment Standards,” Feldman-Gubbay says. “There are 11 basic minimum entitlements that every employee in Australia is entitled to and should be getting – basic things around leave, reasonable additional hours, how many hours is a full-time week, the fact that you should be paid.”

She continues, drawing on her experience with vulnerable clients: “I think that anyone who arrives in Australia and is going to be working should, in the same way that you might provide English lessons to migrants, receive education not just on employment law, but also on basic laws [such as] tenancy law – law that almost every person will interact with.”

A fearless opponent and nice person

Feldman-Gubbay is eager to highlight the importance of mentorship for early career lawyers.

“You don’t need to be a good teacher to be a good lawyer, but I lucked out because my mentors [two RLC team members during her PLT] have been both formidable lawyers and amazing teachers.”

Interpersonal skills are also important for lawyers, she says. “I would say that being a nice person, being able to be kind and empathetic, is a really important skill for a lawyer. It’s overlooked at university, but it’s a really key thing to do. I think we’re often taught to beat that out of ourselves.”

“I think,” she continues, “particularly for women lawyers, there are traits that are perceived as more feminine – being more emotional, or empathetic or sensitive, traits that are often labelled as being weak ­– I guess the opposite of more ‘traditionally masculine’ traits, like being logical and always lead by reason.

“Those ‘weak’ traits, aren’t weak at all, and really contributing to making a well-rounded lawyer, particularly if you ever want to do any direct work with individual clients. Not just because your clients will think you’re nice, but also, if you know how to communicate effectively with people, then you’re going to be able to extract relevant information efficiently and explain the legal ideas in a way that your clients can actually understand. You can be steadfast in your opinion, professional and a fearless opponent, all while being a nice person.”

Feldman-Gubbay reflects on another lesson she has learnt: “I think that somehow this idea that it’s okay to be exploited as a young lawyer has pervaded society. That if you’re a young lawyer, you’re going to be working all sorts of hours, you’re not going to be getting paid properly and all of your superiors are going to treat you like rubbish.”

“And actually, no, that doesn’t have to be, and shouldn’t be, what it is to be a junior lawyer.”

She offers a final piece of advice: “We are better at things we are passionate about. I think that people need to lean into their passions, and that’s the same in law. If you are passionate about something, and you’re privileged enough that you can actually pursue that as a career, then do it.”