Employment Contracts and Legislation

This guide offers understanding of employment contracts and legislation, detailing the significance of contract elements and key strategies for drafting compliant employment contracts.

Understanding employment contracts

Employment contracts are essential in defining the relationship between employers and employees. Whether verbal or written, these agreements establish the terms and conditions of employment and are legally enforceable when they encompass three key elements: an offer, acceptance, and consideration.

The offer typically includes details about the job role, salary, and other relevant terms. Acceptance is the employee's agreement to these terms, which can be expressed in various forms, including verbally, in writing, or through actions such as commencing work. Consideration refers to the mutual benefits derived from the contract - for the employee, it usually involves salary and benefits, while for the employer, it's the acquisition of the employee's skills and labour.

The role of an employment contract extends beyond the commencement of employment, acting as a reference for the rights, duties, and agreements between the parties involved. These contracts provide a clear foundation for the employment relationship, detailing job duties, salary, working hours, and other critical aspects.

They also outline the legal obligations and expectations of both parties, including clauses on confidentiality, intellectual property rights, and methods for dispute resolution. In cases of conflict or disputes, these contracts can be legally enforced, holding either party accountable for breaches of their agreed terms.

Minimum requirements under law

Employment contracts must operate within the framework of employment legislation. They are required to adhere to the minimum standards set by laws such as the National Employment Standards (NES) and relevant modern awards or enterprise agreements. This ensures that contracts do not provide terms that are less favourable than the legal minimum requirements. In instances where a contract's stipulations conflict with legislative provisions, the law takes precedence.

For example, if a contract specifies a wage lower than the minimum award rate, the award rate will be applicable. Contracts also play a significant role in dispute resolution, with courts or tribunals interpreting them in conjunction with applicable laws to resolve conflicts.

The clarity and fairness of employment contracts are of paramount importance. A well-drafted contract ensures that all terms of employment are clearly outlined, reducing the likelihood of misunderstandings and potential disputes. Contracts should be fair and balanced, offering protection to both the employer and employee. Unfair or excessively restrictive terms within a contract can be legally challenged and may be deemed invalid.

Written versus verbal contracts

While both written and verbal contracts are legally valid, written contracts are strongly advised. They provide clear, tangible documentation of the terms agreed upon, making it easier to resolve any disputes that may arise. Certain awards also mandate written communication regarding the status of employment or work hours.

Resolving disputes and legal implications

In case of a dispute, the first step is to verify the contractual elements: offer, acceptance, and consideration. A breach of a legally binding contract, such as failing to pay a promised bonus, exposes an employer to legal action. Therefore, clarity in contracts is paramount to prevent misunderstandings and potential legal issues.

Employment Compass specialise in assisting employers to draft clear, comprehensive, and legally compliant employment contracts. We offer support and guidance to ensure employers understand their obligations and rights under these contracts. For further assistance you can reach out to the Employment Compass' 24-hour Employer Help Line at 1300 144 002.

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