1. Chair:
Nick Duggal, Partner
Presenter:
Liz Aitken, Associate
EMPLOYMENT CONTRACTS
& THE IMPORTANCE OF GETTING
THEM RIGHT

2. The Importance Of
Contracts
Key Contract
Considerations
Implementation
1
2
3

3.  Clarify terms
 End employment
 Prevent disputes
 Defend a claim
 Protect commercial interests
 Investment

4. 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!

5. “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

6. Fixed
Term
Casual
Part
Time
Characterise the Relationship
Full
Time
Contractor

7. “Sham Contracting”
• Multi-factor test
• Prosecution by FWO
• Civil penalties
• Personal liability for
“involvement in a contravention”

8. Contract
Enterprise
Agreement
Modern Award
Fair Work Act 2009
Legal Framework

10. Conditions of Engagement
• Pre-employment requirement
• Ongoing requirement of employment
• Grounds for dismissal?
O’Connell v Catholic Education Office [2016] FWCFB

11. “All-In” Remuneration
• Flat rate or annualised salary
• “Better Off Overall” test
Strip Club audit

12. “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”

13. Termination of Employment
 Specify the notice period
× Alternative: “Reasonable Notice”
Quinn v Jack Chia Australia Limited
 “Continuity” clause

14. • Post-employment restraint
• Legitimate business interests
• “Reasonableness”:
• restricted activities
• distance and duration
Epichealth Pty Ltd v Peng-Kung Yang [2015] SCV
Restraint of Trade

15. 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

16. Implementation
• Agreement to vary terms
• Consider incentive
• Recycle responsibly

17. Wrap Up
• Key considerations
• Empower your business  flexibility & discretion
• Complex environment  keep them simple

18. A streamlined process for:
Managing your Employment Contracts
• obtaining background
• limiting templates
• insertion of individual details
• maximising protections
• updates
• fixed, competitive pricing

20. Seminar Series 2016
1. Employment
Contracts
2. Ongoing
Management
3. Termination
of Employment

21. 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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