What effect do employer policies have on the employment relationship?

Most employers have written policies and procedures to govern aspects of the employment relationship with their employees. Commonly, such policies set out the employer’s expectations and requirements in relation to employee behaviour and responsibilities, and processes for dealing with matters like discipline and termination of employment. Many companies also produce policies dealing with employee entitlements in...

Issues to consider when advising on an employment contract — Preparatory steps and other issues<

This guidance note is one of three guidance notes that provide information regarding the drafting and negotiation of an employment contract. See also Guidance Notes: Issues to consider when advising on an employment contract — Probationary period and other issues and Issues to consider when advising on an employment contract — Incapacity/sickness and other issues. Authored by the LexisNexis Legal Writer...

Issues to consider when advising on an employment contract — Incapacity/sickness and other issues

This guidance note is the third of three guidance notes that provide information regarding the drafting and negotiation of an employment contract. See also Guidance Notes: Issues to consider when advising on an employment contract — Preparatory steps and other issues and Issues to consider when advising on an employment contract — Probationary period and other issues. Authored by the LexisNexis Legal Writer...

Fixed term or maximum term contracts

Before engaging an employee, a person may consider whether they wish to engage the individual for an identifiable period of time or as a permanent and ongoing employee. If the employer decides to offer employment for an identifiable period of time, and the individual accepts an offer on this basis, then a fixed term or maximum term contract may be the most appropriate form of employment contract for the parties. However...

Underpayments of entitlements

Employee entitlements come from various sources, including industrial instruments, legislation, contracts of employment and policies. The provisions setting out employee entitlements in the Fair Work Act 2009 (Cth) (FW Act) are civil penalty provisions. Authored by the LexisNexis Legal Writer team. Employee entitlements come from various sources, including industrial instruments, legislation, contracts of employment...

Contracts — drafting techniques

When adapting precedents or other documents to a plain English standard, it is necessary to take certain steps. These steps are summarised below. Authored by the LexisNexis Legal Writer team. This guidance note supports practitioners to draft in plain English. Drafting techniques When adapting precedents or other documents to a plain English standard, it is necessary to take certain steps. These steps are summarised...

When can an employment contract be terminated without giving notice?

There are some occasions where an employment relationship can be lawfully terminated without notice being provided. The most notable of these situations include: summary dismissal; and when the other party has repudiated the employment contract (and the innocent party accepts the repudiation). Authored by the LexisNexis Legal Writer team. There are some occasions where an employment relationship can be lawfully...

How much notice must an employee give when resigning?

The Fair Work Act 2009 (Cth) (FW Act) only specifies the minimum period of notice that must be given by an employer to an employee when terminating their employment. See Notice of dismissal . Authored by the LexisNexis Legal Writer team. How much notice is required? The Fair Work Act 2009 (Cth) (FW Act) only specifies the minimum period of notice that must be given by an employer to an employee when terminating...

General protections — establishing liability and the reverse onus of proof

The prohibitions in Pt 3-1 (general protections) in the Fair Work Act 2009 (Cth) (FW Act) involve an assessment of whether a person has taken action against a person for a particular reason. Authored by LexisNexis Legal Writer team. The reverse onus of proof and the causal nexus The prohibitions in Pt 3-1 (general protections) in the Fair Work Act 2009 (Cth) (FW Act) involve an assessment of whether a person has...

Are there general protections for engaging in industrial activities?

Part 3-1, Division 4 of the Fair Work Act 2009 (Cth) (FW Act) provides protections in relation to a person’s freedom of association and participation and non-participation in industrial activities. Authored by Nick Le Mare, Partner and Melody Martin, Associate, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team. An introduction to general protections for industrial activities Part 3-1, Division...

How is an action to enforce a general protection initiated or defended?

This guidance note outlines the process for bringing and defending general protections claims in the Fair Work Commission (FWC) and in the Federal Court of Australia and Federal Circuit and Family Court of Australia. It does not deal with the substantive requirements of a general protections claim and refers only in passing to the remedies available to a successful claimant. Authored by Catherine Dow, Lawyer and Jacqueline...

What is a “workplace right”?

Division 3 of Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act) provides wide-ranging protection against “adverse action” for persons who exercise, or have the capacity to exercise, “workplace rights”. Authored by Nick Le Mare, Partner, and Melody Martin, Associate, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team. How are workplace rights protected? Division 3 of Pt 3...

Who can make an adverse action claim?

The core “general protections” in Pt 3-1 of the Fair Work Act 2009 (Cth) (FW Act) prohibit the taking of adverse action by various persons (eg employers, principal contractors) against other persons (eg employees, independent contractors), where that action is taken because of the other person’s: Authored by Nick Le Mare, Partner, and Lauren Mooney, Law Graduate, Corrs Chambers Westgarth. Updated by...

Commonwealth-funded Parental Leave Pay

The Commonwealth government’s paid parental leave scheme was established under the Paid Parental Leave Act 2010 (Cth) (PPL Act). The scheme is for the payment of parental leave pay (s 3A(1), PPL Act), not for leave as such. Authored by Leanne Dorricott, Senior Associate, and Marissa Dooris, Lawyer, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team. What is Commonwealth-funded Parental Leave...

General protections — What remedies are available?

This guidance note outlines the remedies available from the Fair Work Commission (FWC) and the Federal Court or Federal Circuit and Family Court of Australia in respect of general protections claims. Authored by Nick Le Mare, Partner, and Melody Martin, Associate, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team. This guidance note outlines the remedies available from the Fair Work Commission...

Issues to consider when advising on an employment contract — Probationary period and other issues

Advising clients This guidance note is the second of three guidance notes that provide information regarding the drafting and negotiation of an employment contract. See also Guidance Notes: Issues to consider when advising on an employment contract — Preparatory steps and other issues and Issues to consider when advising on an employment contract — Incapacity/sickness and other issues. Typical provisions...

Pre-employment representations

When recruiting for a role, employers may be tempted to “talk up” the role or suggest certain terms and benefits may be available to the successful candidate. If the employer or someone acting on behalf of the employer, makes false or misleading representations to a job applicant, on which the applicant relies in accepting the position, the employer may face a claim for breach of contract and/or breach of...

Enforceability of post-employment restraints

This guidance note provides guidance on the enforceability of post-employment restraints. It should also be read alongside these Guidance Notes: Introduction to post-employment restraints, Drafting post-employment restraint clauses and What is a repudiatory breach of the employment contract? Authored by Luana Payne, Lawyer Senior Associate and Alannah Hogan, Lawyer, Corrs Chambers Westgarth. Updated by the LexisNexis...

Drafting post-employment restraint clauses

A carefully-drafted post-employment restraint can help an employer prevent former employees from engaging in activities which could undermine the employer’s legitimate business interests following the termination of their employment. The key to a valid post-employment restraint is to ensure that the restraint goes no further than is reasonably necessary to protect those interests. A restraint which unreasonably...

Resignation, removal and remuneration of directors

A person may resign as a director of a company by giving written notice to the company at its registered address: s 203A (replaceable rule). Company constitutions usually follow this replaceable rule in the Corporations Act 2001 (Cth) (Corporations Act). However, a company may, in practice, choose to dispense with the formalities set out in its constitution in relation to a director's resignation by agreement. For...

Company directors and company secretaries

Typically, the constitution of a company will vest the powers of oversight and management of the corporate entity in the appointed directors of the company. The day to day management of the company, especially in the case of large companies, will usually fall to the CEO and management, although executive directors will be responsible for discharging both management and board duties. The responsibilities that an executive...

Drafting executive contracts

Discussions between the employer (or recruiter) and candidates during the recruitment process will usually cover matters such as the terms and conditions of employment, remuneration, discretionary payments such as bonuses promotion opportunities and security of employment. Authored by the LexisNexis Legal Writer team. What should I keep in mind when drafting employment contracts for executive employees? Pre-employment...

Employee references

Employees may request a written reference when their employment ends. References provide a basis for a future employer to verify an applicant’s stated employment history and can provide an informed assessment of the job applicant’s experience, skills and capacities. Authored by Stephen Price, Partner and Stephen Jenkins-Flint, Lawyer, Corrs Chambers Westgarth. Updated by the LexisNexis Legal Writer team...

Effective management of risks in the recruitment process

This guidance note sets out information to be considered during the recruitment process and provides links to resources within the module, including precedents, tools, guidance notes and checklists. See also under the heading, Hiring staff in the Employment Frequent Tasks Tool . Authored and updated by the LexisNexis Legal team. This guidance note sets out information to be considered during the recruitment process...

Employment advertisements

This guidance note provides detail on how to mitigate risks when advertising employment vacancies. Readers should also refer to Guidance Note: Effective management of risks in the recruitment process . Authored by Nicholas Ellery, Partner and Alannah Hogan, Lawyer, Corrs Chambers Westgarth, Corrs Chambers Westgarth. Updated by Erin Lynch, Partner, Grace Gunn, Senior Associate and Jessica Smith, Lawyer, Gadens and the...