White SW Computer Law
Intellectual Property, Information Technology & Telecommunications Lawyers
Melbourne Office - PO Box 452, COLLINS STREET WEST Victoria 8007 Australia
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Email: wcl@computerlaw.com.au Internet: http://www.computerlaw.com.au

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Employment Agreements

Even though there may be nothing in writing, there is an employment contract that exists between every employer and employee. Every employee has a fiduciary duty to their employer.

  • The general laws of contract apply. The following must occur for the contract to be deemed to have been accepted.
  • There must have been an offer by the employer and an acceptance by the employee.
  • There must be consideration, in this case an agreement to pay wages in exchange for performance of work.
  • There must have been an intention to create a legal relationship. This excludes volunteer workers.
  • The parties must have the legal capacity to enter into a contract.
  • The work to be performed must not be illegal.

Do you use Independent Contractors?

The contract used by an independent contractor is not an employment contract and has greater possibility for variation of standard conditions. It may be a possible alternative for your business.

What restrictions are there on Employment Contracts?

An employment contract must not seek to avoid legislated minimum conditions in areas such as:

  • Minimum wage and wage protection
  • Equal pay
  • Annual and public holidays
  • Parental, sick and bereavement leave
  • Employment protection
  • Anti-discrimination protection
  • Voluntary defence service leave

Individual Employment Contracts

These contracts must contain a dispute settlement procedure and a stand-down clause.

Do I need to bother with the award if I have an Employment Contract?

Employers should keep an up to date copy of the relevant award and make it available to their employees.

Legislation and awards automatically provide some employment contract clauses and the minimum employment conditions.

Intellectual Property

  • Be careful…. Awards do not include clauses that deal with Intellectual Property ownership and transfer.
  • See in particular the UWA v Gray cases below

What IT issues should be considered when employing staff?

Preparation before a staff member is hired can prevent a lot of problems when the staff member resigns or is terminated.

Have you considered issues such as:

  • A confidentiality agreement.
  • Assignment of copyright issues.
  • A restraint of trade clause
  • If you provide an Employee Handbook, it may include terms and conditions of employment that will form part of the employment contract.
  • If the employee is covered by a State or Federal award, these awards specify minimum terms and conditions of employment that will form part of the employment contract.

How do I terminate an employee's Employment Contract?

To avoid allegations of unfair dismissal, it is important to have a documented history of unsatisfactory performance and warnings that were given to the employee. It is prudent to give the employee written warnings and obtain written acknowledgment that the warnings were received.

There are some basic principles that should be considered before dismissing an employee:

  • The termination must be warranted
  • The termination must be fair
  • The employee must be given the required period of notice or pay in lieu
  • The termination must comply with the terms of the employee's individual employment contract
  • The employee must be paid all amounts owed including: wages; leave entitlements; severance pay; and superannuation.

Cases

2013

2012

2010

2009

2008

2007

2006

2005

1) [2013] FCA 102
2) [2013] FCA 359
3) [2012] FCA 942
4) [2010] FCA 1063
5) [2010] FCA 665
6) [2010] FCA 586
7) [2010] FCA 216
8) [2009] FCA 1229
9) [2009] FCA 1227
10) [2009] FCAFC 116
11) [2008] FCA 1400
12) [2008] FCA 1427
13) [2008] FCA 1315
14) [2008] FCA 1056
15) [2008] FCA 498
16) [2007] FCA 1038
17) [2007] FCA 924
18) [2007] FCA 843
19) [2007] FCA 423
20) [2007] FCA 410
21) [2007] FCA 397
22) [2007] FCA 377
23) [2007] FCA 286
24) [2007] FCA 111
25) [2007] FCA 89
26) [2006] FCA 1825
27) [2006] FCA 1656
28) [2006] FCA 1419
29) [2006] FCA 1350
30) [2006] FCA 686
31) [2006] FCA 517
32) [2005] FCA 1633
33) [2005] FCA 277

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  Liability limited by a scheme approved under Professional Standards Legislation
  This website is a guide only and should not be used as a substitute for proper legal advice.
  Readers should make their own enquiries and seek appropriate legal advice.
  For legal advice please email wcl@computerlaw.com.au