An employment relationship constitutes a legal contract between an employer and employee, whether or not a written agreement exists.
The general law implies certain terms into the relationship: the employee has a duty to exercise reasonable skill and care and to follow the employer’s lawful and reasonable directions; the employee has a right to be paid in exchange for performing his or her duties; and a duty of mutual trust and confidence exists between the parties.
Employment terms and working conditions must also comply with legislation, the National Employment Standards prescribed by the Fair Work Act 2009 (Cth) and any relevant awards. These statutory rights cannot be avoided by contrary contract terms or practices.
A written employment contract provides clarity from the beginning of the employment relationship and may cover a range of matters such as:
- commencement date, duration (if for a fixed term), days and hours of work;
- duties and accountabilities including reporting lines;
- remuneration and overtime arrangements;
- leave entitlements and superannuation;
- probation periods and disciplinary procedures;
- termination and notice requirements;
- performance appraisals and wage reviews;
- reimbursement for travel and other expenses;
- ongoing training and professional development;
- codes of conduct, complaints and dispute resolution procedures (which may be further detailed in relevant policies);
- restraint of trade and confidentiality provisions to protect against misuse of valuable assets such as client contacts and intellectual property;
- confirmation of the legislation governing the employment relationship.
A well-drafted contract helps to place the parties on the same page from the start of the employment relationship and provides certainty regarding a range of matters.
If you are negotiating an employment contract, whether as an employee or employer, it is important to ensure your arrangements are documented in a complying, written agreement with all essential terms and conditions.
The importance of implementing sound policies and codes of conduct for managing workplace relations, disciplinary matters, minimising disputes and dealing with conflict cannot be overstated.
Policies that address work health and safety issues such as bullying and harassment may be invaluable in proving that an employer has attempted to instil the required conduct for employees within a workplace, particularly if a matter comes before the Fair Work Commission, a Court or tribunal.
Policies can address a range of practical matters such as uniforms, leave requests and payment of wages, as well as potential workplace issues such as discrimination, bullying, drugs and alcohol use, email and internet usage.
Developing good policies, supported by systematic and fair processes, is the first step in implementing sound workplace practices. In addition, the existence of a policy must be brought to the attention of all employees. Employers should provide a written or electronic copy of all policies to their employees, explain the key points of each, and receive an employee’s signed acknowledgement of the existence and terms of the policy.
Regular review of workplace policies should ensure they are up to date and address changes in legislation and contemporary work issues.
Employment law is frequently evolving and constantly impacted by advances in technology. Working with an employment lawyer can assist employers to develop policies in line with emerging issues and changing laws.