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...
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...
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...
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...
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 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...
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.
Contracts of employment may provide for terms and conditions that are about the same topic as an applicable industrial instrument (eg concerning leave entitlements or rates of pay). They cannot, however, lawfully derogate from an employee’s entitlements under a relevant industrial instrument, although they can lawfully replicate, improve upon or aggregate such entitlements.
As a general rule, contracts of employment do not automatically incorporate terms and conditions from applicable industrial instruments. Such terms can be incorporated into an employment contract inadvertently as a consequence of clauses that have that effect due to drafting errors or intentionally through agreement.
The contract of employment of any employee to whom an industrial instrument applies will operate subject to the terms and conditions set out in that instrument. This means that it is not possible lawfully to contract on terms that are less advantageous to the employee than the terms of the relevant industrial instrument — see Visscher v Honourable President Justice Giudice.
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