Employment contract review lawyers

Whether an employment contract is written or oral, the terms of the contract may be express or implied.
 

Express terms

Express terms are explicitly agreed. Generally, they include all the terms set out in a written employment contract. They can also be oral or include terms set out in other documents like policies.

If there is no written contract, it may be necessary to examine all of the surrounding circumstances to determine the agreed express terms. This may include reviewing telephone conversations, SMS records, electronic messages and e-mails to determine what agreement was reached by the parties.
 

Implied terms

Written employment contracts sometimes cover only the key elements of the employment relationship, such as position, wage rates, superannuation and work location. However, the law often 'implies' a range of other terms. Terms may be implied by operation of the law, by custom and practice or by the facts surrounding the employment.

A common implied term arises when an employment contract does not expressly state how it can be terminated. In such cases, the law will imply a term that the employment contract can be terminated on 'reasonable notice'.

Sometimes contracts contain 'entire contract' clauses. These clauses generally state that the written terms of the contract are the entire agreement between the parties. In some circumstances additional terms can be implied into these contracts, in spite of the 'entire agreement' clause.

Broadly speaking, the more detailed the contract, the less willing the courts will be to imply additional terms.

An employment contract can be varied by agreement between the parties. Sometimes, employers have a right to make unilateral variations to some terms of the contract.

It is important to get advice from an employment lawyer about possible variations. An attempt to vary the terms of a contract can have unintended consequences such as repudiation. Repudiation is a serious matter where one party renounces their obligations to that contract forcing termination. The innocent party then has the option to sue for damages.

An employment contract may terminate in a number of ways, including:

• expiry of a fixed term
• completion of a specified task
• unilateral termination (such as dismissal or resignation) on notice
• instant dismissal for serious misconduct
• abandonment by the employee.

Employment contracts can include a term that allows an employer to make payment in lieu of giving notice. This means that the employer can pay to the employee an amount equal to what they would have earned had they worked during their notice period and bring the contract to an immediate end.

For employees covered by the Fair Work Act 2009, payment in lieu of notice must be calculated at the employee's full rate of pay, including allowances, penalty rates, bonuses and superannuation contributions.

An alternative to payment in lieu of notice is to place an employee on 'gardening leave'. This term describes the situation when the employee remains employed and continues to draw a salary during their notice period, but is not required to attend or perform work.

Gardening leave can have important consequences for a range of other entitlements, including entitlements under employee share schemes and leave, and your ability to start a new role during the gardening leave period.

Executive Remuneration Package components can include elements such as:

• sign-on bonuses
• commissions
• short and long term incentive schemes
• relocation allowances
• housing or accommodation
• children’s education
• share options
• first-class air travel
• interest-free home loans.

Whether you are an employee or an independent contractor can be a complicated legal question. Under the Fair Work Act 2009, this question is resolved by looking at the totality of the relationship with your employer, not just what your contract says. Just because your contract says you are an employee/contractor, this may not necessarily be the case. 

Our employment lawyers can help in assessing the real substance, practical reality and true nature of your working relationship to help determine whether you are, in fact, an employee or a contractor.

If you have been employed as a casual with the same employer for at least six months (twelve months if your employer is a small business), you may be eligible to convert your casual employment into a Full or Part time role. Your employer cannot refuse a casual conversion request unless there are fair and reasonable operating grounds for the refusal.

Our employment lawyers can provide you with advice on the prospects of your potential casual conversion request and in assist you throughout this process. 

There are certain rules about how fixed term contracts can be used. For example, fixed term contracts cannot be for longer than two years and cannot have more than one renewal option.

If you are employed under a fixed term contract, our employment lawyers can advise you on your rights and entitlements under your fixed term contract. 

Employees have a right to share (or not share) information about their pay. These rights can be exercised by employees even after their employment ends. Employers cannot take adverse action against an employee if they exercise their right to discuss their pay with another person.

If your contract has a clause which purports to restrict this right, the clause may unlawful under the Fair Work Act.

Our employment lawyers can provide you with advice about your rights concerning pay secrecy, including helping to determine the validity of any pay secrecy clauses in your contract.