Jun 16, 2022 | Employment Law
If you are entering into an employment contract, do you know what should be included? If you are an employer and using an old contract, should it be reviewed first? It is clear contracts should be individually structured to meet the needs of those involved and in reality, both employer and employee should seek legal assistance first before offering or accepting an employment contract.
This article is intended to provide a starting point only and attempts to clarify some of the important information all parties should know.
What terms should always be in an Employment Contract?
Naturally there are some preliminary matters. For example, the identity of the parties needs to be set out as well as the duration of the contract (if fixed).
The contract then needs to specify the terms.
Before the terms are considered, the application of any statutory provisions or award or collective agreement must be considered. Generally speaking, employers and employees cannot contract out of awards or collective agreements.
The following are critical to mention and ought to be specified:
- The remuneration;
- The frequency of remuneration reviews;
- The period of the contract (if fixed term);
- The basis of remuneration adjustment and performance management/appraisal;
- Termination conditions;
- Any professional indemnity;
- Any applicable Awards;
- Specific employment conditions including hours of work;
- annual leave;
- annual leave loading;
- public holidays;
- long service leave;
- superannuation;
- reimbursement of expenses;
- sick leave or carer’s leave;
- parental leave; and
- other leave.
Depending on the nature of the employment and industry it may be important also to include:
- Intellectual property;
- Restrictive covenants;
- Professional development and training;
- Location of the employment; and
- Post-termination restraints.
A statement of duties should be attached to the contract. For this attachment to become part of the terms of the contract, it should be expressly incorporated into the contract by a statement which makes it part of the contract in the body of the contract itself or as an annexure.
Workplace policies
Some workplace policies will be incorporated into the contract because of the nature of their content, some will not, and it is often hard to know what matters a court will find are incorporated. If an employer definitely wants to incorporate a policy into the contract, they should expressly do so by reference in the contract.
Employees and contractors
There is often ambiguity in a worker’s status, such as whether they are a true employee or an independent contractor. Employment law differs from other law, such as tax law, on these questions.
There are also significant legal consequences of incorrectly assuming an employee is a contractor, or vice versa. The true nature of the working relationship should be considered at the time of drafting an employment contract or a contract for services.
Superannuation
The employer is responsible to ensure that appropriate superannuation contributions are paid into the employee’s nominated superannuation fund. Generally a contractor will be responsible for their own superannuation contributions. When offering employment, you should clearly state if that offer includes superannuation.
Implied entitlements
Some entitlements and obligations that exist in the employment relationship are implied. This means that even if they are not written down or stated in the contract they still apply.
The implied terms include:
- An employee must exercise reasonable skill and care in their performance of duties;
- A general duty exists for an employee to obey all lawful and reasonable directions by their employer;
- There must be fidelity and confidentiality within the employer/employee relationship; and
- If there is no provision for termination within the contract then “reasonable notice” for termination must occur unless in circumstances of “serious misconduct”.
Conclusion
When negotiating an employment contract it is essential for both employers and employees that the contractual arrangements should be specific to the individual and the terms say what you want them to mean. Parties entering into these arrangements are wise to seek legal assistance beforehand to ensure they are right.
If you want to know more or if you run a business and would like your draft employment contracts reviewed please call us on (02) 9963 9800 or via our contact form.
Jun 5, 2022 | Employment Law, Litigation and Court
Restraint of trade clauses are often found in employment or shareholder agreements. Their purpose is to protect business interests such as client information, intellectual property, employees and trade secrets, by restricting the behavior of previous employees or shareholders. However, the extent to which a business can restrict an employee’s or a former director’s activities through such a clause is often contentious and can result in disputes.
What is a Restraint of Trade?
A restraint of trade clause in an employment contract comes into effect when an employee leaves the business. It may involve terms that limit where the employee may work, what clients they can work with, or what types of work they may do.
Such restraint clauses can be enforced by courts, but only to the extent that is ‘reasonably necessary’ to protect the legitimate interests of the business. Whether a provision is enforceable will therefore depend on the wording of the clause and the context of each case.
Restraint of trade clauses can be characterised as any of the following:
- Non-competition: to prevent a former employee from competing against the company.
- Non-solicitation: to prevent the employee from approaching the employer’s clients.
- Non recruitment: to prevent the employee from recruiting other employees from the company.
- Confidentiality: to protect confidential information and trade secrets.
What is Reasonable Between the Parties?
If a restraint of trade clause is contentious, a court must determine what is reasonable in the context of the facts of your particular case. If the restraint clause goes beyond protecting the business’ legitimate interests to the former employee’s detriment, then a court will not enforce the clause. However, if the clause is reasonable to both parties, it is likely to be enforced.
What will a Court Consider when resolving a dispute?
In NSW, the Restraints of Trade Act 1976 governs the law surrounding restraints of trade. A court will consider a variety of factors in its determination of whether the restraint of trade clause is reasonable. Some of these factors include the:
- Negotiation and whether parties were able to negotiate any terms.
- Respective bargaining position of parties and whether parties were able to obtain legal advice.
- Nature of the business and the characteristics of the role of the employee.
- Remuneration and compensation for the restraint of trade.
- Duration and geographical area of the restraint.
For example, a restraint of trade clause that only lasts for 1 year may be seen as more reasonable than a restraint of trade clause that is indefinite. Similarly, enforcing a substantial restraint of trade clause on a low-level employee of the business may seem much less reasonable than enforcing one onto a high-level employee, such as a previous CEO or COO.
If you are an employer, what can you do to protect your business?
To ensure that your business’ interests are protected in the event that one of your employees leaves, it is vital that the restraint of trade clause in their employment contract is enforceable. Employment contracts should be reviewed regularly to ensure the changing nature of the employee’s current role and the changing nature of the business is reflected in the terms. The time period of the restraint, as well as the geographical area, must be reasonable in relation to the employee’s position. The clauses must be drafted properly and carefully, so that in the event that certain parts of the clause are found to be unenforceable, the clause may be severed and still remain partially enforceable. If you believe that your employment agreement does not adequately cover your legitimate business interests, you should seek legal advice from a competent employment lawyer.
Contact Us
An employer can only enforce a restraint of trade clause to the extent that it is reasonably necessary to protect their business interests. However, whether a clause is reasonably necessary will depend on the particular facts of the case, and in any dispute, it is best to seek professional legal advice. If you would like to discuss your employment law matter with a legal professional please contact us on (02) 9963 9800 or via our contact form.
May 19, 2022 | Employment Law
The High Court of Australia has recently affirmed that casual workers are not entitled to receive payments for annual, sick, or other forms of leave, and that if a worker is receiving these benefits and being promised ongoing employment, that worker may not legally be considered casually employed under the Fair work Act 2009 (Cth) (‘Fair Work Act’).
The decision in Workpac v Rossato
The High Court’s decision was made after allowing the appeal of Workpac in their case against casual mine worker Robert Rossato. The courts had investigated Mr Rossato’s alleged status as a ‘long-term employee’ for the labour- hire company and found that he was actually only employed in the capacity of a designated ‘casual-worker’.
Mr Rossato was employed by Workpac for four years. During the time, he received a total of six employment contracts which described his role as a ‘casual employee’. Mr Rossato claimed that by working on a fixed weekly roster – sometimes over several consecutive months – he was more than just a ‘casual-worker’ and that there was a discrepancy between his title and the actual nature of his work. At first instance in the Federal Court it was found that Mr Rossato was not a casual employee upon this basis. However, upon appeal, the High Court found that Mr Rossato was a casual employee under the Fair Work Act.
The Court made this decision on the basis that although Mr Rossato had been given rosters several months in advance, this did not constitute a ‘firm advance commitment’ of work, as the shifts could have been changed or taken away from him at any time. Additionally, the Court concluded that Mr Rossato was employed on an ‘assignment-by-assignment’ basis, as he was entitled to accept or reject any offer of assignment, and Workpac had no obligation to offer additional assignments.
Mr Rossato was not receiving any paid annual or sick leave and he was receiving casual loading. The Court held that these were “compelling indicators” of a casual employee.
Fair Work Act 2009
The Fair Work Act is an essential Commonwealth statutes that governs employment by setting out terms, conditions, rights and responsibilities in the relationship between employers and employees. It regulates the rights of both employers and employees to request flexible working arrangements, and also deals with things such as termination and the general protection of workers’ rights.
The Federal Court’s initial decision in Workpac v Rossato necessitated a change to the definition of a casual employee under s 15A of the Fair Work Act. The new definition states casual work involves an employment relationship in which ‘employment made by the employer to the person is made on the basis that the employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work”.
How Etheringtons Solicitors can help
If you would like further information regarding employment issues or paid entitlements, please do not hesitate to contact one of our solicitors on 9963 9800 or via our contact form here.
May 18, 2022 | COVID-19, Employment Law
Australia’s national workplace tribunal, the Fair Work Commission (FWC), has upheld the dismissal of unvaccinated employees for failing to comply with relevant public health orders (vaccination directions) regarding COVID-19. To mitigate the risk of unfair dismissal claims, employers must ensure that procedural fairness is upheld.
Disclaimer: The directives in this article relating to the COVID-19 pandemic may no longer be in force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.
Can an employee be terminated for refusing to be vaccinated?
The cases explored in this article have established a precedent for the lawful dismissal of unvaccinated employees. The cases demonstrate how an employee’s decision to remain unvaccinated against COVID-19 can prevent onsite work. The refusal of vaccination directions can result in an employee being incapable of performing the inherent requirements of their role, thus leading to a valid reason for dismissal.
Floors Aucamp v Association for Christian Senior Citizens Homes Inc [2021] FWC 6669
Background:
In January 2016, Mr Aucamp commenced employment with the Association for Christian Senior Citizens Homes Inc (the Association) in the role of a full-time maintenance manager.
On 4 October 2021, a meeting took place between Mr Aucamp and two representatives from the Association to discuss the vaccination directions that were going to be implemented on 7 October 2021. The Association was aware of Mr Aucamp’s objection to the vaccine. Mr Aucamp agreed to the possibility of dismissal should he refuse to comply with the vaccination orders.
Mr Aucamp’s employment was terminated on 14 October 2021 on the basis that Mr Aucamp could not lawfully enter the premises and was therefore unable to perform his duties.
FWC Decision:
The FWC agreed that Mr Aucamp was required to be vaccinated in accordance with public health orders. The FWC held that Mr Aucamp’s decision to remain unvaccinated rendered him incapable of achieving the expected standards of performance, thereby constituting a valid reason for dismissal.
Background:
On 20 September 2021, the management of Epworth HealthCare (Epworth) informed all employees that mandatory vaccination directions required healthcare workers to ‘be vaccinated and provide appropriate evidence of vaccination, or have a booking to receive a vaccination by 29 October 2021, unless the exception for medical contraindications applied.’
Ms Stevens, a dietician at Epworth, communicated her objections to the vaccine to the executive general manager of Epworth Richmond. The executive general manager advised her that it would not be feasible to ‘perform the key requirements of her role from home.’ Owing to Ms Stevens’ incapacity to attend the workplace, her employment was terminated.
FWC Decision:
The FWC upheld the dismissal of Ms Stevens on the grounds that she refused to provide her employer with proof of her vaccination status.
The FWC rejected the following submissions from Ms Stevens:
- that taking the vaccine was to ‘participate in a “medical trial procedure”’
- that the vaccination directions were inconsistent with federal law
- that the vaccination directions were inconsistent with the Privacy Act 1988
- that the vaccination directions were inconsistent with anti-discrimination legislation
- that the vaccination directions were inconsistent with international human rights conventions
- that Epworth should have lobbied against the Victorian Government to have the vaccination directions revoked
The FWC held that Epworth’s dismissal of Ms Stevens was in accordance with vaccination directions which imposed a duty of care on healthcare facilities. These directions imposed a ‘regulatory requirement’ in relation to the vaccination status of Epworth’s employees, rendering the dismissal lawful.
Likewise, the FWC rejected the contention that the COVID-19 vaccination rollout was a “medical trial,” as the relevant tests had taken place before the Therapeutic Goods Administration approved the vaccines.
What are the obligations of an employer?
It is the responsibility of the employer to take steps to comply with the relevant public health orders. When implementing policies such as mandatory COVID-19 vaccine policy, employers must ensure procedural fairness by undertaking a consulting process with their employees.
To understand how the vaccination directions apply differently across each state and territory, please visit the Fair Work Ombudsman website.
Additionally, if you would like to learn more about the complexities of unfair dismissal claims, please visit our blog.
How Etheringtons Solicitors can help?
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with any employment law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
May 18, 2022 | Employment Law
Some businesses choose to pay their employees cash in hand wages rather than transferring them to a nominated bank account. Whilst this method is generally believed to be illegal, that is not necessarily the case. Employers must meet their obligations to their employees and the government, whether they make payment in cash or otherwise. This article will explain how cash in hand wages can be legal and the obligations employers must observe when paying their employees.
What is ‘cash in hand’?
Payment of wages as cash in hand means that a person is paid directly in cash rather than through a bank or with a cheque. In small hospitality and maintenance businesses, where this practice is common, it is an easy and efficient way to operate the business.
Employer obligations
If an employer wants to pay wages through cash in hand, it is important that they ensure their obligations are still being met by:
- Paying their employees the correct amount under the relevant award;
- Paying the correct amount as stipulated in employment contracts and allowing for any leave entitlements;
- Taking out the relevant tax amount to ensure employees aren’t left with the bill;
- Contributing superannuation payments to employees superannuation funds; and
- Being covered by workers compensation in case an employee is injured at
To legitimise the cash in hand payment, it is advisable to provide your employees with a pay-slip to prove that their earnings correlate with the award, the correct tax is being taken out and superannuation payments are being made. Pay slips should generally include:
Employer and employee names; Australian Business Number; Pay period (weekly or fortnightly);
Gross and net pay (pay before and after tax); Applicable hours worked and rate of pay; Any additional loadings or penalty rates; and Superannuation contributions.
Employers can also provide employees with a payment summary at the end of each financial year which outlines how much they have been paid throughout the year, and what amount of this is going to tax.
Once these records have been provided to employees, it is essential that employers keep and file a copy for their own records. Employers are expected to keep a record of their employees and their pay and this can be as simple as keeping a physical or electronic copy of employees’ pay slip.
It is also important as an employer that you ensure that you comply with the requirements of the Australian Taxation Office. Committing tax fraud or other tax related offences can attract severe criminal penalties. Therefore, it is important to comply with the ATO’s requirements and withhold the correct tax amount from your employees’ wages. If you are concerned about tax thresholds or understanding your reporting obligations, it is imperative that you seek the appropriate financial and legal advice.
There have been a number of high-profile cases involving the systemic underpayment of workers in restaurants, convenience stores and petrol stations. It is critical that these sorts of practices do not continue into the future.
Receiving cash in hand wages
As an employee, receiving cash in hand payments may be more convenient for you and your employer. However it is important to ensure that you are not being paid less than what you are owed under your contract or under the correct award rate. You are also obligated to declare your income to the Australian Taxation Office when completing your tax return. It is advisable to confirm with your employer that they are paying superannuation contributions to your nominated super fund. If you are concerned about the way in which you are being paid, speak to your employer or seek experienced legal advice.
How Etheringtons Solicitors can help?
We can help you by providing advice and representation in any employment law matter, whether you are the employer or employee. If you need any assistance contact one of our lawyers here or call 02 9963 9800 for a no- obligation discussion and for expert legal advice.
May 11, 2022 | Employment Law
An employer’s potential liability for workplace discrimination arises before the first interview and exists whether or not a decision is made to hire a person.
A job interview is integral to the recruitment process and provides an opportunity for the employer to ask questions, check credentials and determine a prospective employee’s suitability for a position. It also provides reciprocal opportunities for candidates to find out more about the role and the organisation and to assess their interest in the position.
Naturally, both parties want to find the ‘right fit’ however the employer is largely in control of the interview process and may go about finding the right person in the wrong manner.
By asking a candidate certain illegal questions during the interview process, employers risk breaching Commonwealth and/or State laws aimed to protect individuals against discrimination in the workplace.
What are illegal interview questions?
When interviewing a candidate for a position, the primary focus of the questions asked should be to assess the applicant’s inherent ability to perform the key functions of the role.
Employers should avoid asking questions about certain unlawful factors for which a candidate’s answer could be construed as relevant to the success, or otherwise, of his or her application. These include questions about age, gender, sexual preference, ethnicity, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion or social origin. Essentially, these matters are considered irrelevant in determining a person’s capacity to perform the role.
Even the most innocent questions (such as those that might be asked during the course of social conversation) could be considered unlawful during a formal interview. The following are some examples:
- How do you manage work with three children?
- How old are you?
- Does your disability prevent you from carrying out your job?
These questions have something in common – they are questions that might be asked of a particular category of applicants (those with children, over 50 years of age or with a disability) that would not necessarily be asked of other applicants.
Other questions that may result in a discrimination complaint include:
- What is your religion?
- Where were you born?
- Are you working at the moment?
- Have you had a workers’ compensation claim?
These questions are unnecessary when determining an applicant’s ability to carry out the duties required of the role and should be avoided. Deciding that an applicant is unsuited for the position based on an answer to one or more of these questions may result in discrimination action.
Asking the right questions
Potential claims for discrimination can be minimised by re-thinking your approach to how questions are asked and having a detailed job description to refer to during the interview process. This helps keep the interview on track and ensures only the essential requirements of the position are addressed.
Organisations are encouraged to implement a set of standard interview questions that focus on the key skills and requirements of the position. This may include asking applicants to demonstrate how their skills and personal qualities make them an ideal choice for the role. An effective way to achieve this is to ask for examples of how the applicant has achieved certain outcomes or reacted to particular situations in previous roles. For example, you might ask, ‘please explain how you managed an irate customer during your time as service representative with XYZ’.
Following are some examples of discriminatory questions, together with an alternative approach that can be used to obtain the necessary information from a candidate.
Injuries / physical disabilities
It may be necessary to discuss an applicant’s injuries or physical condition to determine objectively whether he or she would be able to safely perform, without personal risk or risk to others, the duties required.
Rather than asking directly about his or her condition, the interviewer should go through each element of the job and, where relevant, discuss what adjustments to the workplace might be required to assist the applicant perform these duties. Appropriate questions may include:
- ‘Are there any reasons why you may not safely be able to lift 5 kg?’
- ‘Are there any specific adjustments we would need to make so you could carry out the duties required?’
This demonstrates that the employer has genuinely considered the applicant who may be an ideal fit, with a few minor modifications to the workplace.
Age
Asking an applicant his or her age is unlawful particularly if the employer is assuming that the person, due to age, lacks the energy, drive or technical ability to carry out the role. Basing questions on the applicant’s skills, experience and inherent ability to perform these tasks, rather than querying their age will help minimise a discrimination complaint. An appropriate question would be:
- ‘Tell me about your computer experience…what types of programs have you used?’
Family commitments
It is unlawful to discriminate against a candidate based on his or her family circumstances. Rather than asking applicants if they have children or family commitments, simply ask whether they are able to commit to the hours/days required of the position. For example:
- ‘The job will occasionally require you to work evenings and weekends – would this conflict with other commitments?’
Religion or Race
It is unlawful to rule out an applicant whom you assume will be unable to work weekends due to religion, race or culture. If the job requires weekend work, simply point out the required days and ask the applicant whether he or she would have any issues working these days.
Currently working
Asking an applicant if he or she is currently working could be perceived as discrimination on the grounds of employment, unemployment or receiving a pension. Instead, ask when the applicant would be available to start work.
Conclusion
Avoiding workplace discrimination starts before the recruitment process and continues throughout the employment relationship (including opportunities for career progression), during workplace investigations and termination processes.
Framing questions appropriately to minimise potential action for unfair discrimination and to give candidates an opportunity to demonstrate whether they can perform the job requires sound procedures and ensuring those involved in the recruitment process are aware of their obligations.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9963 9800 or via our contact form here.
