Employment Agreements, Contracts of Employment
Importance of Employment Agreements
With the combination of the Fair Work Act 2009 (Cth) (the Act), the National Employment Standards (NES) and the Modern Awards, it has never been more important to enter into well written agreements of employment with staff. Hoping that nothing will go wrong is no excuse.
Well drafted agreements not only set out the ground rules of the relationship between employer and employee, they also limit risk for employers and provide probative assistance when resolving workplace disputes.
Benefits of having an Employment Agreements
- Regulating the taking of leave entitlements.
- Inclusion of enforceable non-compete, restraint of trade and non-solicitation clauses to protect an employer’s legitimate commercial interests, other employees as well as business customers.
- Inclusion of pay, overtime and benefits clauses – for Award and non-Award employees.
- Setting out performance requirements, including any applicable commission/bonus schemes.
- Requiring a minimum period of notice of resignation by staff.
- Protecting an employer’s confidential information and intellectual property.
- Assisting the recovering of overpayments to an employee in the event of termination.
When is a Agreement an Employment Agreement?
- One party has voluntarily taken on a legally enforceable duty to work
- another party has voluntarily taken on a legally enforceable obligation to pay wages in return for that work
- each party intends to be legally bound by their obligations, which are continuing and mutual, i.e the employees performance of their obligation must depend on the performance of the employers obligation
- essential terms, such as pay and the type of work to be performed, have been agreed on
Types of Employment Contracts
A permanent employee has an expectation of ongoing employment, and may be employed either;
- Full-time, i.e at least 38 hours per week; or
- Part-time, i.e less that 38 ordinary hours per week
Fixed-term employment means that you agree with a fixed-term employee that employment will end on a particular date
A casual employee is engaged for one or more discrete engagements without continuity of service between each engagement, and can work irregular and informal hours.
Seasonal or Piecework
Seasonal and piecework employees are paid a piece rate, i.e a rate set by reference to a quantifiable output or task (e.g shearing sheep or picking fruit) not for a period of time worked