Employment Contract Lawyers

How Do You Define an Employment Relationship?

Identifying that an employment relationship exists is important for determining the rights and obligations of both parties under Australian employment law. The other main alternative is that there may be a relationship of the principal and the independent contractor. The key factors that indicate an employment relationship include:

• The employer’s degree of control over the work
• Whether the worker performs work as part of the employer’s business
• Whether the worker is integrated into the employer’s business
• Whether the work requires specific skills or training
• Whether the employer provides the equipment and tools for the work
• Whether the worker works hours that are determined by the employer
• Whether the worker is entitled to leave

Our employment lawyers can help you properly define and document the employment relationship in your contracts to ensure compliance with employment laws.

If your business wishes to enter into an independent contractor relationship, it’s equally important that it is clearly documented in writing so that there is no misunderstanding. 

Is an Employment Contract Mandatory?

No, employment contracts are generally not mandatory under Australian law. A contract of employment can be binding based on verbal or implied terms, or through an offer letter, workplace policies, and other employment documents.

However, having a written employment contract is highly recommended, as it provides clear terms and protections for the employer. A contract reduces misunderstandings, outlines obligations, and gives legal recourse if the relationship sours.

Our employment lawyers strongly advise putting an employment contract in place, especially for long-term employment. 

Do Lawyers Write Employment Contracts?

Yes, employment lawyers typically draft, review, and negotiate employment contracts for both employers and employees. Having a lawyer involved ensures the contract complies with employment laws and adequately protects the interests of both parties. 

Our experienced employment lawyers can create comprehensive, customised employment contracts tailored to your specific situation and needs.

Are Employment Contracts Legally Binding In Australia?

Yes, properly written employment contracts are legally binding under Australian employment laws. However, employment contracts can be overridden by legislation such as the Fair Work Act 2009 (Cth).

However, a legally binding employment contract should contain certain essential elements, including duties, compensation, benefits, and termination clauses. Vague or incomplete contracts can be contested. 

Our employment lawyers ensure your contracts contain the necessary provisions to make them legally binding under Australian laws.

How Do You Make an Employment Contract Legally Binding?

There are a few key steps required to make an employment contract legally enforceable: 

• Clearly define the employment terms, conditions, rights and responsibilities of both parties
• Have the contract reviewed or drafted by an employment lawyer
• Ensure consideration is exchanged (e.g. salary, wages, benefits, etc.)
• Include termination provisions
• Have both parties mutually sign and date the finalised contract

Following these steps, alongside the guidance of our legal team, ensures your employment contracts will be binding under Australian law.

What Are Some Key Sections in an Employment Contract?

Some of the most important sections in a comprehensive employment contract include

• Conditions of offer
• Job title and duties
• Days and hours of work
• Whether overtime is payable
• Compensation amounts and payment schedule
• Statutory entitlements  such as leave and superannuation
• Intellectual property and confidentiality provisions
• Restrictive covenants, including post-employment restraints
• Termination requirements, including return of property 

An experienced employment lawyer can advise you on the essential sections to include in your employment contracts.

Can I Make Changes To an Existing Employment Contract?

Yes, most employment contracts can be modified (i.e. varied) with the consent of both the employer and the employee. Our lawyers can review your current employment agreements, identify areas for improvement, and recommend specific changes to strengthen your protections as the situation evolves. 

However, some provisions, like post-employment restraints, can be difficult to change once executed. We can also recommend strategies for how to implement changes to the written employment contract successfully. 

What are Enterprise Agreements?

Enterprise agreements are formal workplace agreements made between an employer or group of employers and their employees that set out the terms and conditions of employment. They are negotiated agreements that operate in conjunction with employment awards and employment contracts. 

If an enterprise agreement applies to an employee, the employee’s employment contract cannot provide for anything less than what the enterprise agreement does. 

Enterprise agreements allow for flexibility to meet the specific needs of a workplace. For example, they may provide additional benefits like higher wages or more leave. However, they cannot contain terms below the minimum award conditions. Our employment lawyers can assist with negotiating enterprise agreements.