Frequent Errors Companies Make with Employment Contracts
Work contracts are an essential part of running any organisation. If a disagreement emerges, the first file that is considered is the employment agreement to determine what the terms of the employment relationship are.
Below is a list of a few of the most frequent errors we have experienced with employment agreement.
Contract terms do not adhere to the Fair Work Act 2009 (Cth) or appropriate Modern Award. This is often an oversight by an employer, but it exposes the company to unsettled salaries claims.
Utilizing out of date design templates. Templates are a fantastic way to accelerate the process of on-boarding a staff member, however, they need to be frequently reviewed and as much as date with the existing legislation.
Work relationship varies from status provided. The real employment relationship and conditions determines the employment status; not merely what is stated in the employment agreement. Employers need to ensure the relationship is consistent with the designated status, or expose themselves to a claim.
Altering the terms of employment without arrangement. Legal terms can not be unilaterally changed by a company.
Not going to the contract when dismissing a staff member. Failing to comply with the terms of the agreement when dismissing a worker can expose the company to a breach of contract claim, along with any other claims that might be offered to the staff member such as unjust termination or general defense claims.
Bloom Attorneys provides employment law services, and has experience in representing both employers and workers in employment agreement conflicts, breach of contract claims and other work associated claims.
Call or email Holly Edmondson at Blossom Lawyers to discuss your legal matter. Otherwise submit a query using the contact us form.
A Mentioned Casual Staff Member-- To Hell With The Rest
Blossom Legal representatives recently encountered a concern whereby a company client was exposed to a claim for unpaid incomes, due to the fact that the casual work relationship they thought remained in place for a staff member, was in fact that of a permanent part-time worker.
The company used a casual employment contract template that was available free of charge on the internet (the agreement). The contract mentioned that the worker was a 'casual worker' and the staff member was for that reason not entitled to yearly leave, sick leave or any other privileges readily available to long-term workers.
What would a court consider?
When figuring out the employment status, a Court considers all of the relevant truths and scenarios consisting of the attributes of the work relationship, such as the:
Guarantee of continuous work;
Expectation of future work;
Consistency of work and hours of work;
Reimbursement employment law solicitor southport and whether this includes a casual loading; and
Payment of leave privileges.
A recent court decision has figured out that the 'presence of a firm advance commitment to continuing and indefinite work (subject to rights of termination) according to an agreed pattern of work will normally show ... the existing of on-going full-time or part-time employment rather than casual work'.
Consequently, for an employment relationship to be considered a casual arrangement, there would be no guarantee or expectation of future or ongoing work, the schedule of work and the hours of work would generally be irregular, a casual loading would be applied, and the staff member would not be entitled to paid annual leave, paid sick/carer's leave, or paid caring leave.
More information about the rights and privileges of a casual staff member is offered from the Fair Work Ombudsman website.
Facts of the case
In the matter that Bloom Attorney was assisting with, the following relevant qualities were present:
The agreement specified that it was a casual work arrangement;
There was a termination notice period appropriate of 6 months by either party;
The hours and days of work were regular and organized;
The staff member was paid a casual loading at 25%; and
The staff member was not paid for annual leave, sick/carer's leave or thoughtful leave.
One significant problem the employer dealt with is that with the contract offering a 6-month termination notice period, there was an expectation of future employment subject to the company or worker providing 6 months' notification of their intention to terminate the contract. In these situations and where the worker was working routine systematic hours, the employment arrangement would likely be thought about by a court to be that of a long-term worker, regardless of that the agreement stated that it was a 'casual' work arrangement.
Where the work relationship was likely to be thought about an irreversible part-time arrangement, the staff member ought to have been paid yearly leave, sick/carer's leave and compassionate leave. The employer was therefore exposed to a claim for unsettled incomes for these leave privileges (subject to any set off readily available).
The take home message from this matter is that employers require to make sure the provisions of their employment contracts comply with all legal requirements, and are prepared so that the attributes of the work relationship reflect the objectives of the company and employee.
Do you need help?
Are you a service with issues that your employment contracts might not be appropriate and worried about a potential adverse action or unpaid wages claim? Contact Holly Edmondson, the Principal of Bloom Lawyers, to organize a consultation at our Southport workplace on the Gold Coast. Otherwise, you can make the most of our complimentary 20 minute telephone consultation to discuss your legal matter.