What are the general protections against sham contracting?

“Sham contracting” occurs where an employment relationship (contract of service) is disguised as an independent contracting arrangement (contract for services). Sham contracting may be undertaken for a variety of reasons, including to deprive employees of entitlements or to avoid or reduce taxation liability. Authored by Clare Parsons, Associate and Anthony Forsyth, Consultant, Corrs Chambers Westgarth....

Workflow guidance with timeline for key dates and requirements for unpaid parental leave

This guidance note is about the taking of unpaid parental leave and other related entitlements under the National Employment Standards: Pt 2-2, Div 5 of the Fair Work Act 2009 (Cth) (FW Act). Various provisions of the FW Act were amended by: Authored by the LexisNexis Legal Writer team. This guidance note is about the taking of unpaid parental leave and other related entitlements under the National Employment Standards...

What are the legal risks involved in managing employee injury/illness?

Employees who are ill or injured must be carefully managed throughout the employment life cycle including during recruitment, while employed and if their employment is terminated. During recruitment, the results of a medical examination may require an employer to make reasonable adjustments to enable the prospective employee to perform the inherent requirements of the role. Authored by the LexisNexis Legal Writer team...

Liability for underpayments

If an employer fails to keep records or provide pay slips as required under ss 535–536 of the Fair Work Act 2009 (Cth) (FW Act) (and Pt 3.07 of the Fair Work Regulations 2009 (Cth) (FW Regulations)) without reasonable excuse, a reverse onus of proof applies in relation to certain contraventions: s 557C, FW Act. Authored by the LexisNexis Legal Writer team. Liability under the Fair Work Act 2009 (Cth) Primary...

Are there other general protections?

Part 3-1 of the Fair Work Act 2009 (Cth) (FW Act) provides broad-ranging protection for employees, independent contractors and employers against “adverse action” (see Guidance Note: Who can make an adverse action claim?) on the grounds of possessing and/or exercising “workplace rights” (see Guidance Note: What is a “workplace right”?) and engaging in “industrial activity”...

Unlawful contracts

A contract, a term or the performance of a contract or term may be illegal on one of three broad grounds. First, it may be contrary to public policy. Second, it may be expressly or impliedly prohibited by statute. Third, it may be contrary to the purpose or policy of a statute. This final ground is founded on public policy and thereby the common law, but its scope and content depends on the statute concerned. The second...

Consideration and certainty

One of the requirements for the creation of a valid contract of employment is that “valuable consideration” moves between the parties, and that the terms of the purported contract are sufficiently “certain” to be given legal effect. Authored by Nicholas Ellery, Partner, and Alannah Hogan, Lawyer, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team. One of the requirements...

Offer and acceptance

For a contract of employment to come into existence, it is essential that the potential employer makes what the common law recognises as an “offer” to enter into legal relations, and that that offer be “accepted” by the potential employee. So long as they possess the requisite legal character, both the “offer” and the “acceptance” can be made and communicated in either a...

Intention to enter a legal relationship

The existence of a mutual intention to create legal relations is an essential precondition of the existence of a contract of employment (or any other kind of contract, including a principal/contractor relationship). Authored by Nicholas Ellery, Partner and Alannah Hogan, Lawyer, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team. The existence of a mutual intention to create legal relations is an...

Capacity to enter into contracts of employment

Parties wishing to enter into a contract of employment must have the legal capacity to do so. There is a common law presumption that a person has the capacity to enter into a contract. Issues concerning the capacity to contract rarely arise in employment. When they do, they usually concern employees who are minors, or have a mental disability, or are intoxicated. Authored by Nicholas Ellery, Partner and Alannah Hogan...

Parental leave under state systems

The term parental leave describes a number of entitlements associated with the birth or adoption of a child, including: unpaid parental leave under Pt 2-2, Div 5 of the Fair Work Act 2009 (Cth); Commonwealth-funded parental leave pay; and/or employer-funded parental leave. Authored by the LexisNexis Legal Writer team. The term parental leave describes a number of entitlements associated with the birth or...

Types of parental leave under the national system

The term parental leave describes several leave entitlements associated with the birth or adoption of a child, including: unpaid parental leave under the National Employment Standards (NES); employer-funded parental leave; unpaid special maternity leave; paid no safe job leave; and unpaid pre-adoption leave. Authored by Leanne Dorricott, Senior Associate, and Marissa Dooris, Lawyer, Corrs Chambers Westgarth...

Returning from parental leave under the national system

Various provisions of the Fair Work Act 2009 (Cth) (FW Act) were amended by: The Fair Work Amendment (Improving Unpaid Parental Leave for Parents of Stillborn Babies and Other Measures) Act 2020 (Cth) (Improving Unpaid Parental Leave Amendment Act) effective as from 27 November 2020 (see s 2, table item 2). The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act...

Applying for parental leave under the national system

Under the National Employment Standards (NES) in Pt 2-2 of the Fair Work Act 2009 (Cth) (FW Act), an employee is entitled to 12 months of unpaid leave associated with the birth or adoption of a child (s 70 of the FW Act). An employee may request a further 12-month period of unpaid parental leave immediately following the end of the available parental leave period: s 76(1) of the FW Act. Authored by the LexisNexis Legal...

Managing national system employees on parental leave

Division 5, Pt 2-2 of the Fair Work Act 2009 (Cth) (FW Act) provides for parental leave and related entitlements for national system employees as a part of the National Employment Standards (NES): ss 60 and 61(3). Authored by the LexisNexis Legal Writer team. What are keeping in touch days? Division 5, Pt 2-2 of the Fair Work Act 2009 (Cth) (FW Act) provides for parental leave and related entitlements for national...

An introduction to the general protections

The “general protections” provisions in Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act) contain various protections for employees, independent contractors, employers and other persons. Some of these protections are based on long-standing provisions relating to freedom of association. More recent provisions are aimed at preventing sham contracting arrangements. Authored by Anthony Forsyth, Consultant, Corrs...

Effective management of employee misconduct

Best practice employers will take steps to ensure acceptable behaviour in the workplace. If applicable standards of behaviour are not met, employers may need to manage employees' conduct, which includes providing opportunities for the employee to improve. Authored by the Lexis Nexis Legal Writer team and updated by Erin Lynch, Partner, Grace Gunn, Senior Associate, and Jessica Smith, Lawyer, Gadens. Managing conduct...

Key considerations for inquiries or investigations — purpose, waiver and privilege

In circumstances of alleged employee misconduct, it is important that an employer has evidence indicating the decision to discipline or dismiss was valid and defensible and not made for unlawful reasons. Written by the LexisNexis Legal Writer Team In circumstances of alleged employee misconduct, it is important that an employer has evidence indicating the decision to discipline or dismiss was valid and defensible...

Managing employee underperformance at work

“Performance management” can refer to a number of things. It can mean the day-to-day supervision of an employee’s work, with regular, informal communications about work expectations and delivery of work, coaching and providing informal feedback on performance. Authored by Rebecca Preston, Senior Associate, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team. An introduction to performance...

Vaccination in the workplace

During an outbreak of disease or illness, or in anticipation of one, businesses may wish to manage risks to the safety of workers and others in the workplace by introducing vaccination as control to eliminate or minimise these risks. Authored by the LexisNexis Legal Writer team. During an outbreak of disease or illness, or in anticipation of one, businesses may wish to manage risks to the safety of workers and others...

How can the terms of an employment contract be varied?

The employment contract may be varied at any time by mutual agreement between the parties. Generally speaking, parties cannot unilaterally vary the employment contract unless the original contract of employment, an applicable industrial instrument or legislation expressly provides for such. Authored by the LexisNexis Legal Writer team. Can the parties change an existing term of an employment contract? The employment...

Which terms can be implied into an employment contract?

Contracts of employment contain both express and implied terms. Express terms are those that are explicitly agreed between the parties, whether in writing, orally or a combination of the two. See Guidance Note: What importance do express terms have in establishing an employment relationship? Authored by Heidi Roberts, Partner and Amanda Loftus, Lawyer, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer...

What importance do express terms have in establishing an employment relationship?

All employment relationships are underpinned by a contract of employment. As with other contracts, the employment contract will be formed by the making of an offer by one party and the acceptance, for valuable consideration, of the offer by the other party. In employment relationships, the consideration is the promise by the employer to pay the employee for the employee’s work and the promise by the employee to...

What effect do awards and enterprise agreements have on the employment relationship?

The Fair Work Act 2009 (Cth) (FW Act) provides for the making of "modern awards" and various types of "enterprise agreements". Collectively, awards and agreements can conveniently be referred to as “industrial instruments”. Authored by Catherine Dow, Lawyer and Anthony Forsyth, Consultant, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team. The Fair Work Act 2009...

What effect do statutory minimum standards have on the employment relationship?

Generally, contracts of employment do not incorporate statutory minimum employment standards but operate subject to them. However, it is possible for statutory minimum standards to be incorporated into a contract of employment as express terms. In addition, contractual entitlements that relate to matters covered by the National Employment Standards or a modern award may be enforced as “safety net contractual entitlements”...