Employers suffer under Australian employment law. The law favours the Employee. The only way to fight back is with an Employment Contract online. We are a law firm. You are building your Employment Contract online on a law firm’s website. We are the only Australian law firm providing legal documents online. Protect yourself.
The government does not want to stop your ex-Employees from working in their chosen trade or profession. Irrespective of what you put in your Employment Contract:
You can’t stop the ex-Employee working in his field of expertise. But stealing your clients, suppliers and confidential systems is a different story. In our Employment Contract, you can stop your ex-Employee from stealing your goodwill. This is the same as stopping them from stealing your office furniture or tools.
However, the non-solicitation restraint has to be reasonable. This to both:
Have a look at our Sample Employment Contract on how we deal with this issue of both ‘time’ and ‘area’. We put it in stages. If the court thought the ‘time’ restraint was too long, then the court enforces a shorter period. If you didn’t do this then the court may not enforce any ‘time’.
In Entello v Firooztash, the Employer had to go to court. This was to enforce a six-month non-solicitation restraint. This was because the Employment Contract failed to contain the 6-month restraint. Ours does.
The Court has broadened the concept of ‘solicit’ in favour of the Employer. Our Employment Contracts adopt this better definition.
The Court stated that ‘solicit’ means ‘to ask for business’. That is not new. What about if your ex-Employee does not telephone or email your clients? In other words, the ex-Employee does not expressly ask the client to come and join him. The ex-Employee may not have approached the client at all – it may be the client approaching your ex-Employee.
The ex-Employee is still ‘soliciting’ that is ‘asking for business’ if he gives the impression of wanting the client. It is soliciting if there is any encouragement. This is new law and highly beneficial to you. This is provided that you have an up-to-date Employment Contract online.
Yes, Employment Contracts often go out of date – they are therefore useless. However, our Employment Contract online is subservient to mandatory employment laws. This stops your Employment Contract from going out of date.
Legal Consolidated Employment Contracts are subservient to mandatory employment law.
When the laws change, the Employment Contract is ‘read down’ so as not to offend the new mandatory law.
When Awards or rules change the Employment Contract is read down to comply with the new mandatory obligations.
Q: The Legal Consolditecd Employment Contract states:
‘Subject to any applicable legislation, your entitlement to sick leave is not carried over from the year in which the entitlement arose to the next year. The entitlement expires on each anniversary of your employment with us.’
Fair Work says sick leave accumulates and rolls over every year. Just confirming, whilst Fair Work says it does accumulate, it does?
A: The short answer is yes.
The long answer is:
Your employee may currently be under Fair Work legislation. That may change throughout the life of the Employment Contract. If it does change our Employment Contract automatically updates.
Similarly, your Employee may currently be under Commonwealth legislation. This is rather than State legislation. But this may change in the future through no fault of you or your Employer. If it does your Employment Contract automatically updates.
Similalry, currently, you are correct, under Fair Work legislation, sick leave is carried over. But that may change in the future. In which case the Employment Contract automatically updates. For example, if the rules, legislation or Modern Awards change to say that sick leave does not need to be carried over then you, as the Employer, are protected.
The Employment Contract is designed to:
You and your Employee may wish to alter the Employment Contract. You can alter the Employment Contract by an exchange of emails.
Email is the primary means of communication from employer to employee. This is of it is immediacy, ease of operation and little cost to operate. With the ever-increasing use of emails comes the reality that more and more employment matters are negotiated through email.
For a contract you need:
Gone are the days where it takes a hard copy of a contract signed in ink with a pen to be the only way or amending an employment contract.
But you can only do this if the Employment Contract expressly allows a change to the contact via an exchange of emails.
Legal Consolidated expressly allows you to update the Employment Contract by an exchange of emails.
We put in a unique set of powers. Change the terms of the Employment Contract without getting your Employee’s permission. This is via procedure manuals and policies. You love the flexibility. We are putting control back into your hands.
An Employment Contract is a two-way agreement. Both parties must agree. To change the Employment Contract both parties must freely agree. (This is is why building a Legal Consolidated Employment Contract is important. It allows you to update procedures without going back to all the Employees.)
But what about changes to the Employment Contract for a specific employee? To update the Employment Contract you just build a new Employment Contract. But this has to be freely agreed to by both you and your employee. What if the old Employee does not want to sign the new Employment Contract?
Just because you want to update the Employment Contract does not mean your Employee has to accept the change. They are entitled to say “no” to a proposed replacement Employment Contract.
Casual employees have as many rights as every other Australian employee. The general rule is that the Employment Contract protects you from all employees. A casual employment agreement sets out rules such as confidentiality, policies, intellectual property, the rate of pay and termination notice.
You get disputes whether the employee is casual or otherwise. An Employment Contract reduces disputes. It also helps if you are attacked for underpayment where the casual argues they are permanent.
Your employees carry out different jobs. They may move from full time permanent to part-time and casual. Your employee may start as casual. But later they get into regular hours of work. This is despite their casual employment.
WorkPac v Rossato is about a casual employee. The Federal Court of Australia stated that just calling your employee a “casual” does not automatically make them a casual employee.
A casual employee has work that is inconsistent, irregular or short term. Casual employees whose work doesn’t fit that description can now make a claim that they are or have been a permanent employee. They then claim additional entitlements. Paying casual loading to avoid or set off a liability to pay entitlements is not enough to escape. You need a legally prepared Employment Contract and comply with the law.
An employee can remain a casual. But the Employee needs to understand that by accepting the casual loading, they give up a retrospective claim for permanent employment entitlements. You need an Employment Contract prepared by a lawyer.
Q: I have my first 0.5FTE (full-time equivalent) starting part-time. I know that I am obliged to nominate the days and hours that the employee works (for public holidays, sick leave etc.).
A: The benefit of a Legal Consolidated Employment Contract is that it is updated by an exchange of emails. Therefore, when you email the Employment Contract to the employee you, at that time, state what days and hours they are to work. And as that changes over the years you change them by another exchange of emails. You do not document the days and hours in the Employment Contract. You do not set it in stone. Rather you let the employee know by an exchange of emails.
For whatever reason:
Your current employee may be happy with no written employment contract. Afterall Employment Contracts only help you, the employer. Why should the employee weaken his position?
Similarly, the more out of date the Employment Contract all the better for the Employee.
A good time to present the old Employee with a new Legal Consolidated Employment Contract is when you agree to an increase in the Employee’s salary. Before the pay rise can take place the Employment Contract needs to be signed. A condition on the pay rise is that Employer and Employee can agree on a new Employment Contract.
Fundamental terms are the foundation of an Employment Contract. Any change to them results in the formation of a new contract. The fundamental terms of an employment contract include:
If any of those take place then it is a good idea to build a Legal Consolidated Employment Contract.
Q: This clause appears in the Employment Contract. What damages or remedy could be sought?
A: This is a standard clause. It should be, and generally is in all Employment Contracts. This clause is also in confidentiality agreements and non-compete agreements.
Sometimes the Employee leaks a secret. It leads to no damage to the Employer. But it causes huge reputation risk and damages are not enough. An injunction stops the Employee talking about the secret information.
If money damages are not a sufficient remedy for any breach the Employer is entitled to equitable relief. This includes an injunction and specific performance, as a remedy for any such breach.
In other words, if the Employee breaches the confidentiality obligations, the Employer is entitled to an injunction.
When deciding whether to grant an injunction, the court considers various factors. These include whether an injunction is necessary. If the breach can be adequately compensated with a financial award, the court might decide that an injunction is not necessary. Clauses such as those above record the parties’ agreement that an injunction is an appropriate remedy.
A government has a multitude of employment rules and awards designed for one purpose – to protect the Employee. Fight back with our Employment Contract.
Adj Professor, Dr Brett Davies, CTA, AIAMA, BJuris, LLB, Dip Ed, BArts(Hons), LLM, MBA, SJD
Legal Consolidated Barristers and Solicitors
National Australian law firm
National: 1800 141 612
Mobile: 0477 796 959
Email: [email protected]