How To Create Employment Contracts – HRwisdom

Tag: How To Create Employment Contracts

Legal Responsibilities of Employers [Checklist]

The Australian Government regularly makes changes to the legal responsibilities of employers, particularly in the area of wage rates.

Today we are sharing a government checklist of the legal responsibilities of employers.

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Legal Responsibilities of Employers – A Checklist

1. Are you providing the National Employment Standards (NES) that are relevant to your employees?

  • 38 hour standard week Legal Responsibilities of Employers
  • Unpaid parental leave 
  • 10 days paid personal/carer’s leave 
  • Notice of termination and redundancy 
  • Long service leave 
  • Flexible working arrangements 
  • 4 weeks paid annual leave 
  • Community service leave 
  • Public holidays 
  • Fair Work Information Statement

2. Do you know the award(s) or agreement (if any) that covers your business?

3. Do you know how to find the rates of pay from your award or agreement?

4. Do you know the correct:

  • penalty rates? 
  • casual loadings (if any)? 
  • overtime payments? 
  • meal breaks? 
  • allowances (e.g. uniform, travel)?

5. Are you providing accurate time and wage records for you employees?

Do you:

  • record start and finish times? 
  • keep time and wage records for seven (7) years?
  • provide pay slips within one (1) 
  • working day of employees being paid? 
  • know what to include on a pay slip? 
  • maintain a record of leave entitlements?

6. Do you know about your responsibilities when dismissing staff including:

  • unfair dismissal laws? 
  • what to do if a position becomes redundant? 
  • minimum notice periods? 
  • final payment requirements?

7. Do you know what an Individual Flexibility Arrangement is?

8. Are you aware of your options for making an enterprise agreement with employees?

9. Are you aware that the Fair Work Act 2009 provides General Protections including the right to be free from unlawful discrimination, undue influence, coercion and misrepresentation?

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See available session times here: Free Workplace Law Briefings For Employers [/box]

How To Get Help?

If you have questions you need answering, you have two main options:

Remember, be proactive to minimise the risks.

HRwisdom

Employment Restraint of Trade – Advice From A Lawyer

Writing an employment contract? In this special article, a guest expert takes a look at the concept of employment restraint of trade.

George Haros is a highly experienced workplace lawyer and today he is answering some tricky employment contract questions:

  • What is a restraint of trade clause?
  • What should we make of the Emeco v O’Shea case?
  • Will your restraint of trade clause be enforced?
  • What you can do to get it right?

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See available session times here: Free Workplace Law Briefings For Employers [/box]

Over to George . . .

What is an employment restraint of trade clause?

An employment restraint of trade clause is commonly found in an employment agreement and used by employers in an attempt to protect the employer’s business interests.

Employment Restraint of TradeWhy is a restraint of trade clause important?

A restraint of trade clause attempts to regulate an employee’s conduct while still engaged in the employment relationship or a former employee’s conduct once the employment relationship has ended.

However, employers must also take extreme care when considering the inclusion of such restraint clauses.

Where the clauses are ambiguous or too broad, a court may find the restraint unenforceable.

The main principle is that the restraint can only be upheld if it protects the legitimate interests of the employer, and the clause is not wider than is reasonably necessary to protect those interests.

Although there is no precise rule as to what restraint terms are considered reasonable; what is required in each case is an evaluative judgement taking into account the specific circumstances of each party and their relationship.

The Emeco v O’Shea Case

The recent case of Emeco v O’Shea [2012] WASC 348 demonstrates how the Courts of Western Australia have considered restraint clauses.

Emeco v O’Shea [2012] WASC 348 Facts: Emeco operated in the highly competitive industry of dry hiring mobile mining equipment in Australia and internationally.

Mr O’Shea was employed by Emeco as a business development manager for 21 months.

As a senior employee, he built up close relationships with important clients of Emeco and was entrusted with confidential information.

After Mr O’Shea resigned from Emeco, he immediately took up employment with one of Emeco’s major competitors, National Plant and Equipment (NPE). Emeco sought an injunction to enforce the restraints in Mr O’Shea’s employment contract, amongst which he would be prevented from working for Emeco’s competitors, soliciting any of its clients, or providing services to any of its clients within Western Australia, for a period of 6 months after the termination of employment.

The Decision: Endelman J accepted that Emeco’s legitimate interests included its customer connections and confidential information, and Emeco was entitled to restrain its employees to the extent necessary to protect its legitimate interests.

The Court found that in Mr O’Shea’s role as a business development manager at Emeco, he retained confidential information about the business and its individual clients, which could be used to the detriment of Emeco.  

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On that basis, the Court held that it was reasonable for Emeco to restrain Mr O’Shea from undertaking employment with any competitor, including NPE, for a period of 6 months. However, the non-solicitation and client restraints were found to be unenforceable due mainly to the broad definition of “client”, which covered both actual and potential customers of Emeco, and were not limited to those with whom Mr O’Shea had personal contact.

The Court was therefore of the opinion that these restraints could go further than was reasonable to protect the legitimate interests of Emeco in protecting those customer connections developed by the employee. As a part of its judgment, the Court also considered the fact that the restraint clauses were subject to the express qualification that Mr O’Shea will not engage in the restrained activities “without the prior written consent of Emeco”.

This qualification implies that Emeco would not unreasonably withhold consent, and was a factor that played some part in the Court’s determination that the competitor restraint was reasonable. However, the Court also noted that such qualification could not operate to make a very wide restraint clause enforceable.

Will your restraint of trade clause be enforced?

Based on the case law in this area it is clear that whether or not your clause will be enforceable will depend on the construction of the restraint clause and of course, the circumstances.

The onus is on the employer to prove that the restraint clause is valid and enforceable where a business can demonstrate that it has a legitimate interest to protect and that the clause is reasonable.

What you can do to get it right?

Consider:

  1. Is there a genuine and legitimate interest that needs protecting?
  2. Is your restraint clause for a time period that is longer than necessary to protect that interest?
  3. Does the restraint clause cover a geographical area that is larger than necessary to protect that interest?
  4. Take particular care to ensure that the restraint is not so broad as to prevent the employee from working at all; and For Employers, seek advice on the construction of your clause.

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Thanks to George for this excellent information.

HRwisdom

Controversial Presentation On A New Employment Model – Microworking

New Employment Model - Microworking

In today’s HRwisdom Blog, we are sharing a controversial video presentation which deals with a proposed new employment model – microworking.

Plenty of people need jobs with very flexible hours — but it’s difficult for those people to connect with the employers who need them. Wingham Rowan is working on that. He explains how the same technology that powers modern financial markets can help employers book workers for slivers of time.

Wingham Rowan is the founder of social business Slivers-of-Time, which runs online markets for microworking and micro-volunteering.

There has been heated discussion around this presentation.

New Employment Model – Microworking

Here is the original presentation.

Feel free to share this page via the social media icons below.

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Workplace Law Employer Briefings

Workplace Law Employer Briefings

HRwisdom recently undertook a survey of Australian employers to find out what were the key issues in the area of workplace law.

The following issues were the clear leaders:

  • Unfair Dismissal
  • Adverse Action
  • Managing Redundancies
  • Managing Underperformers

We have now begun a series of free online employer briefings to help you with these topics.

Update On Workplace Law For Employers

UPDATE: The webinars are now here: Free Employment Law Webinars

 

The Employment Contract Process Explained (HR Infographic)

In today’s HRwisdom Blog post, we are sharing our HR infographic on the employment contract process.

Whilst we share many document templates to use in your organisation, it is important to remember the process that supports the use of the employment documents.

Getting the hiring process correct means fewer problems down the track should things take a turn for the worse.

A proper hiring contract process also enhances your standing as an efficient, effective and professional employer.

Employment Contract ProcessThe diagram called ‘The Right Way To Create Employment Contracts’ explains:

  • What to cover
  • When to get legal advice
  • How to discuss the contract with the prospective employee.
  • The review and general administration process.

To view a large version of the management infographic, just click on the picture on the left.

As always, feel free to share this with colleagues and friends.

Employment Contract Assistance Video

HRwisdom

New HR Infographic On The Right Way To Create Employment Contracts

Recently, here on the HRwisdom Facebook Page, we shared a new HR infographic explaining the right way to create employment contracts.

The new HR infographic explains the key elements to ensuring that you have a good employment contract development process in place. Tweet This Infographic New HR Infographic - How To Create Employment Contracts

The picture quickly outlines aspects such as:

  • Drafting your employment contract.
  • Understanding minimum entitlements.
  • Legal advice on social media and other tricky areas.
  • How to explain the contract to your new employee.
  • The employee contract review process.
  • Documenting the agreement.

The diagram is a very handy guide for any organisation trying to ensure that there are no hiring contract issues down the track.

Interested? Jump over to the HRwisdom Facebook Page now to see the new HR infographic.

For more workforce management information, watch the following HR video:


Local Workplace Law Advice For Employers

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