Home' SA 50s Lifestyle : SA50s Autumn 2014 Contents 24 Autumn 2014
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THE LAW AND YOU
Employment contracts from an employee perspective
by Belal Moraby, Senior
Consultant at Tindall Gask
Every non -government employee is
subject to an employment contract
whether they know it or not, says
Adelaide Employment Lawyer Belal
An employment contract is a
legally binding agreement between
an employer and an employee. It
may be nothing but a handshake
and verbal agreement; it could
be in writing, or a combination of
both. It could be a simple letter of
appointment or email containing
details of remuneration and period
of service. In some cases it is a
complex written document.
An employment contract can contain
both express terms such as the level
of remuneration and the type of
work that has to be done, and other
terms that are implied.
An example of an implied term is
an employee’s duty to be faithful
to the employer and not work for
a competitor during the contract
without permission. Implied terms
could be implied by law or by the
circumstances of a particular case.
Express terms will generally override
Before signing your employment
contract it is important to be
aware that there are legally
enforceable minimum terms and
conditions contained in the National
Employment Standards (NES) which
form part of the Fair Work Act 2009.
Some things to look out for when
considering an employment contract
Unilateral changes without
Any proposed employment contract
that has been provided to you should
be clear in detail and the terms of
the employment relationship. There
should not be a clause which allows
the employer to unilaterally change
any of the clauses of the contract
without your prior consent.
Even if it is specified that you will
be consulted with regard to any
changes to the contract this does
not necessarily mean you will have
the power to do anything about it.
You should be reluctant to agree to
such a provision.
Reference to company policies
There may be a provision of the
employment contract which refers
to a “company policy”. Be sure to
read the policy before you sign the
contract. It may lead to a “back-
door” way for your employer to
make changes to the contract of
employment by changing policy
which could in turn affect your
Restraint /non - competitive
Some employment contracts and
in particular executive employment
contracts contain provisions which
prevent an employee from working
for a competitor or a client of the
employer within a period of time
after the employment relationship
ends. There could also be a
restriction based on a geographical
area. This could have implications in
An employer may take action to
enforce restraint clauses and seek
an order for an injunction restraining
the employee from taking up new
employment in breach of the terms
of their employment contract.
Ordinary hours of work
There may be a clause within an
employment contract which stipulates
the ordinary hours of work which may
be a maximum 38 hours per week.
This may mean that even if you are
working in excess of 38 hours per
week you may only receive an annual
salary based on a 38-hour week.
Generally speaking, unless your
employment contract specifically
states that you will be paid for the
hours you work in addition to your
ordinary hours an employee will not
generally have an enforceable claim
against their employer for payment if
working additional hours. Having said
that, employment contracts will not
necessarily extinguish any entitlement
to overtime that a worker has under
an award or enterprise agreement.
Agreed annual salary
The employment contract should
specify the level of remuneration.
It should also specify whether
superannuation is to be paid over
and above the annual salary or
whether the salary is inclusive of
Compliance with employment
Virtually all Australian workers are
covered by the NES which is a set of
minimum employment conditions.
The terms set out in the employment
contract should not be less generous
than what is contained in the NES.
If the terms are less generous they
should be brought to the employer’s
attention before you sign the
Allowances and reimbursement
Some work requires travel to
external offices or sites within a
state, interstate or other countries.
Employers will typically have a
number of policies that cover the
administration of allowances and
reimbursement of expenses.
To be fully aware of their entitlements
an employee may like to request
copies of all relevant policies
concerning such entitlements before
signing an employment contract.
Bonuses and incentive programs
Some employment contracts may
make reference to “bonus schemes”
which are more often than not
subject to the employer’s discretion.
It pays to give consideration to
the wording of such clauses to
ensure that the provisions regarding
bonuses are achievable.
Employment contracts can be
complex. You may not be able to
achieve all of the benefits you were
initially seeking but it is important
to know where you stand. An
employment contract should provide
certainty. It is recommended to
obtain legal advice as soon as an
employment contract has been
provided to you.
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