As we go through the biggest era of change in employment laws and modern awards that we have ever seen, it is becoming increasingly important to have written contracts that clearly set out the pay and conditions applying to each individual employee or contractor. Do yours? And are they current, compliant and complete? 

Why do you need written contracts?

When you engage someone to work for you, whether as an employee or a contractor, it brings into play a host of legal obligations covered by the Fair Work Act and a variety of other legislation and, in the case of employees, modern awards and, where applicable, enterprise agreements. 

There are many purposes that contracts serve:

1.  They educate you about your legal obligations and can be a source of information for decision-making on issues that arise in the relationship with the employee or contractor.
2. They clearly set out the nature of the relationship between you and the employee (be it full-time, part-time, casual or fixed term) or contractor.
3. They provide details on any duties or obligations that the employee or contractor is required to satisfy in the relationship with you.
4. They provide evidence of the employee or contractor acceptance of the pay and conditions as set out in the contract and, assuming the fairness of the contract, can be used in defence of any claim that might be made against you or your business.
5. There have been around 70 changes in employment law and modern awards and the rules around employment and contracting have undergone an overhaul recently.

The gap between employee and contractor is progressively becoming more blurred so you also want clarity, especially if the individual is not covered by a company (Pty Ltd) structure.

What are the changes that affect contracts? 

Some of the significant changes that need to be considered in contracts are:

1. New definitions of employee, casual employee and contractor
2. Prohibition of pay secrecy provisions
3. A new jurisdiction at the Fair Work Commission for disputes in relation to unfair contract claims
4. New jursidictions for road transport contractors and gig workers
5. The “right to disconnect” and associated award provisions
6. Changes to rules in relation to annual shutdowns
7. Revised casual conversion provisions
8. New jurisdictions for dispute resolution at the Fair Work Commission regarding sexual harassment, requests for flexible working arrangements, requests for extension of parental leave and complaints regarding the right to disconnect

These are just a few of the issues that need to be considered in constructing contracts and their relevance may well vary according to the industry, business setting, occupation and seniority of the role in question. 

Other considerations

While under the changes that we are currently seeing, we are moving back to multi-factorial assessment of the true nature of a relationship (eg contractor or employee), the contract is still an important piece of evidence in determining such questions.

Remember that one size does not fit all and don’t just adopt a template that you got from somewhere else or that is the standard on the HR compliance system that you use. It is imperative that the contract is a fit with your business arrangements and with the individual concerned – ie ensure that they reflect the reality.

We have also seen a number of prosecutions of corporations in recent years for underpayment of wages related to employees being put on contracts with fixed salaries which did not provide adequate remuneration for the hours that those employees actually worked.

So, if you do want to put people on salaries or you wish to set off any award entitlements that might apply to an employee, you need to both be very specific in the contract about exactly which award provisions are being set off and compensated for by the remuneration provided for in the contract and you have to make sure that the employee is actually better off than they would be if the award was literally applied to their employment, pay and conditions.

Also a heads up if you have restraint provisions that the ACCC is currently considering whether restraint provisions should be regulated or, in some cases, abolished – so watch this space.

How we can help

We have been helping clients with employment contracts for over 20 years.

We can advise you on award coverage, terms in awards that affect remuneration or impose certain conditions and help you in structuring remuneration and benefits so that your offer is compliant.

We can help you to navigate all of the changes that are coming in so that your contracts are current.

And we can help you to decide the style of contract that you want in each case and what needs to go into them to make them complete for that particular circumstance.

If you would like to explore how we can assist you with employment contracts, call us on 1300 108 488 or email enquiries@ridgelinehr.com.au to arrange your free first consultation.