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It is crucial to carefully look over an employment contract before starting new employment and if needed an employee may need to negotiate the terms of the contract provided. It is important to ensure that the contract reflects the terms and conditions of new employment and to ensure the contract does detail any negotiated terms between and employer and your employer.
If an employer does not adhere to the terms detailed in an employment contract, it will be a breach of contract. Should a breach of contract occur, an employee may sue the employer for damages suffered because of that breach.
An employee is someone who was hired by their employer and performs work and services for their employer in accordance with their employment contract.
On the other hand, an independent contractor or a subcontractor ‘hires’ out their services to a business or company for a certain period of time. Independent contractors and subcontractors do still have contracts, but they are individually negotiated with that business or company. Negotiations may include how much contractors get paid, the degree of the work, timeframes, and any other terms. Contractors are also not protected in the same way as employees by legislation, for example they are not entitled to the same minimum notice periods under the Fair Work Act 2009.
Varying any terms within the contract may only be done by agreement between the employee and employer. Further, the employer must have the express right to amend the contract, otherwise it cannot be done.
If an employer attempts to amend the contract without agreement with you, then you may terminate the contract and sue your employer for damages as a result of the breach.
| Employee's period of continuous service with the employer at the end of the day the notice is given | Period |
|---|---|
| Not more than 1 year | 1 week |
| More than 1 year but not more than 3 years | 2 weeks |
| More than 3 years but not more than 5 years | 3 weeks |
| More than 5 years | 4 weeks |
Note that the above notice periods increase by 1 week if you are over the age of 45 and have completed a minimum of 2 years continuous service with your employer.
Notice periods, however, do not apply if you are employed as a casual worker, independent contractor, or sub-contractor.
Notice periods also do not apply in cases of dismissal for serious misconduct. In such cases where there has been serious misconduct on the part of the employee, an employer may dismiss the employee without notice. Some examples of serious misconduct include causing serious risk to the health and safety of others, theft, assault, fraud, and other unlawful activity.
Employment contracts may include a term that allows employers to issue pay in lieu of notice of your termination. This means that the employer may instead pay the amount equivalent to the full rate of pay you would have received if you had worked that period, as a substitute for the notice. This payment must also include allowances, penalty rates, bonuses, and superannuation contributions.
However, if the employment contract does not have a clause that allows for payment in lieu of notice, then the employer must allow you to work during your notice period up until termination.
Employee rights and entitlements are set out in a number of different places.
An employee’s minimum entitlements are set out in the National Employment Standards (NES) and their relevant award. Enterprise agreements, other registered agreements and employee contracts provide an employee with additional rights and entitlements that have not otherwise been covered in the NES or relevant award.
These rules provide an employee their rights pertaining to pay, hours of work, leave, breaks, public holidays to name a few.
If you are unsure what entitlements you have as an employee, be sure to carefully read your employment contract, industry award, or any agreements relevant to your employment.
If you believe any of your rights have been infringed, you should seek legal advice as soon as possible. There are time limits to make applications with the Fair Work Commission, so if you believe or are unsure whether your employer has infringed on rights then it is best to seek legal advice as soon as you can.
Casual employees generally have different entitlements to full time and part time employees.
Casual employees often will not receive paid annual leave, paid sick leave, or redundancy pay. They are also not subjected to the minimal termination requirements. As a substitute for the entitlements, casual employees are instead paid casual loading.
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