Chair:

Nick Duggal, Partner

Presenter:

Liz Aitken, Associate

EMPLOYMENT CONTRACTS & THE IMPORTANCE OF GETTING

THEM RIGHT

The Importance Of

Contracts

Key Contract

Considerations

Implementation

1

2

3

Clarify terms

End employment

Prevent disputes

Defend a claim

Protect commercial interests

Investment

Rakic v John Lyng Insurance Building Solutions (Vic) Pty Ltd

Position accepted on the basis of “misleading representations” not

incorporated as term of contract

Representations didn’t eventuate

Court awarded compensation of over $300,000

Agreed terms – all of them!

“No reliance” clause

Robertson v Knott Investments

Alleged representation that employment would continue for 3 years

Employment ended by reason of redundancy

Claim under trade practices law of reliance on misrepresentation

Court rejected the claim contract specified notice of termination

entitlement and “no reliance” clause

Fixed

Term Casual

Part

Time

Characterise the Relationship

Full

Time

Contractor

“Sham Contracting”

• Multi-factor test

• Prosecution by FWO

• Civil penalties

• Personal liability for

“involvement in a contravention”

Contract

Enterprise

Agreement

Modern Award

Fair Work Act 2009

Legal Framework

Conditions of Engagement

• Pre-employment requirement

• Ongoing requirement of employment

• Grounds for dismissal?

O’Connell v Catholic Education Office [2016] FWCFB

“All-In” Remuneration

• Flat rate or annualised salary

• “Better Off Overall” test

Strip Club audit

“Off-Set” Clause

• In satisfaction of applicable entitlements

New Image Photographics Pty Ltd v Fair Work

Ombudsman [2013] FCA

“[there was] no designation by the employer of

any overpayment being referable to the

underpayments which had been made, and

certainly no agreement to that effect”

Termination of Employment

Specify the notice period

× Alternative: “Reasonable Notice”

Quinn v Jack Chia Australia Limited

“Continuity” clause

• Post-employment restraint

• Legitimate business interests

• “Reasonableness”:

• restricted activities

• distance and duration

Epichealth Pty Ltd v Peng-Kung Yang [2015] SCV

Restraint of Trade

Workplace Policies

• Communicate standards

• Require employee compliance

• Avoid contractual obligations

• Retain flexibility & discretion

• Defend claims

Nikolich v Goldman Sachs [2007] FCAFC

James v Royal Bank of Scotland [2015] FCAFC

Implementation

• Agreement to vary terms

• Consider incentive

• Recycle responsibly

Wrap Up

• Key considerations

• Empower your business flexibility & discretion

• Complex environment keep them simple

A streamlined process for:

Managing your Employment Contracts

• obtaining background

• limiting templates

• insertion of individual details

• maximising protections

• updates

• fixed, competitive pricing

Seminar Series 2016

1. Employment

Contracts

2. Ongoing

Management

3. Termination

of Employment

Contact Us

Nicholas Duggal

Partner

TressCox Lawyers

T: 03 9602 9744

E: nicholas_duggal@tresscox.com.au

Elizabeth Aitken

Associate

TressCox Lawyers

T: 03 9602 9708

E: elizabeth_aitken@tresscox.com.au

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