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HR Essentials: Employment Contracts
Presented by
Kristin Ramsey
Associate Director
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Session Overview
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Session overview
• Industrial framework
• Preliminary considerations
• Content
• Drafting for flexibility
• Offers of employment
• Contract administration
• Emerging Areas
• Top tips
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Industrial Framework
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Hierarchy
Legislation
EBA/Award
Employment Contract
Policies/Procedures
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Format
LOE
Standard terms & conditions
Policies & procedures
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Risks from poor drafting
• Confusion over terms• Disputes over interpretation• Inadvertent creation of entitlements• Reasonable notice claims• Policies and other documents incorporated• Absence of protective provisions• Limited ability to amend/change• Termination disputes
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Preliminary Considerations
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Preliminary considerations
Contract
TypeLegal landscape
Nature of organisatio
n
AudienceAnything special or unique?
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Type of contract
• Relationship: employee, contractor, other?
• Status: full time, part time, casual
• Duration: ongoing, fixed term, fixed task
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Legal landscape
• Which Awards?
• Underpinned by an EBA?
• Applicable legislation?
• Other industry requirements/guidelines?
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Nature of organisation
• Industry
• Type of work
• Key issues
• Desired arrangements
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Special or unique?
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Audience
• Age
• Education level
• Language skills
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Content
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Basics Specific purpose
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Don’t want to see it !
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Basics
• Position/classification
• Employment status
• Tenure
• Commencement date
• Location
• Probation
• Hours
• General duties & responsibilities
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Basics
• Remuneration • Expenses• Leave entitlements• Public holidays• Compliance with policies• Confidentiality• Intellectual property
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Basics
• Suspension
• Abandonment
• Termination
• Post termination
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Special purpose
• Recognition of previous service• Relocation• Bonuses/incentives• Other benefits• Restraint• Preconditions• Dispute resolution• Other?
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Machinery clauses
• Offsetting• Applicable award• Interaction with other instruments• Right to work in Australia• Warranties• Definitions• Variation• Continuation of terms• Law of the contract
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Implied terms
• Work/wages bargain• Obey lawful and reasonable directions• Good faith and fidelity• Indemnify against expenses• Safe working environment• Reasonable notice • Mutual trust and confidence
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You really shouldn’t …
• Detailed processes and procedures • Highly variable/changeable matters• Incorporation of other instruments
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Now is NOT the time to
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Drafting for flexibility
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Flexibility
• Express ability to vary with notice/consultation• Leave details for policy documents• Ensure additional benefits discretionary
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Making offers of employment
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Offers of employment
√ Be 100% certain
√ Have the contract ready
√ Include any preconditions in contract
√ Be careful when explaining terms
√ Encourage to seek independent advice
√ Insist on signed contract before commencement
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Contract Administration
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Use of templates
• Greater efficiency and consistency• Suitably tailored • Understanding of content • Risk management process• Regular review
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New contracts for existing staff
• When– significant change
• How – consideration– conditional
• Potential adverse action territory!
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Emerging issues
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Emerging issues
• Absorbing superannuation increases• Policy and other document incorporation• Bonuses• Relevance of probation• Salary packaging/offsetting• Contract renewal• Implied term of trust and confidence
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Top Tips
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Top Tips
• Invest in a good set of templates• Don’t amend without considering consequences• Review templates every 1 – 2 years• Get signed contract before commencement• Encourage independent advice• Written variation every time there is a change• Don’t pressure to vary/sign new contracts • Refer to and comply with the contract!
