Employment Contracts FAQs
Find out more about employment contracts by reading the frequently asked questions below. For further information, our lawyers can provide professional advice in all areas of employment law.
What should I put in an employment contract?
An employment contract cannot provide for less than the legal minimum set out in:
- the National Employment Standards (NES):
- Maximum weekly hours of work – 38 hours per week, plus reasonable hours.
- Requests for flexible working arrangements – certain employees can ask to change their working arrangement.
- Parental leave and related entitlements – up to 12 months unpaid leave and the right to ask for an extra 12 months unpaid leave. Also includes adoption-related leave.
- Annual leave – four weeks paid leave per year, plus an additional week for some shift workers.
- Personal/carer’s leave and compassionate leave – 10 days paid personal/carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave as required.
- Community service leave – unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
- Long service leave – paid leave for employees who have been with the same employer for a long time.
- Public holidays – a paid day off on a public holiday (unpaid for casuals), except where reasonably requested to work.
- Notice of termination and redundancy pay – up to five weeks’ notice of termination and up to 16 weeks redundancy pay, both based on length of service.
- Provision of a Fair Work Information Statement – must be provided by employers to all new employees.
- awards, enterprise agreements or other registered agreements that may apply.
All employees are covered by the NES, regardless of whether they have signed a contract. A contract cannot make employees worse off than their minimum legal entitlements.
How can I stop an employee from stealing company information?
At the outset of your business’s relationship with an employee, it is important to have an employment contract with a confidentiality clause. A confidentiality clause should clearly define what is confidential to the business as well as specific details relevant to the business.
When a staff member resigns, is terminated or made redundant, this is a crucial time for the business to confirm the employee returns all information back to the company.
It may be prudent to invest in data leakage prevention software or use encryption technology to prevent others from receiving your data. As leaks may happen online, it can be a good idea to monitor emails.
What remedies are available?
If you discover that an employee is stealing your company’s information and has breached the explicit terms of the confidentiality agreement, you can take the following steps:
- Terminate their employment by way of disciplinary action; or
- Seek a court order to prevent any future breaches of the confidentiality agreement; or
- Seek court orders against the employee who breached the order to recoup any monetary damages that the employee has caused the business. You should not approach this option lightly as litigation is costly with no guarantee.
How can I prevent an employee from working for a competitor?
You should ensure you have a signed contract of employee with an appropriate restraint of trade clause.
A restraint of trade clause is in an employment agreement that generally prevents a former employee from:
- starting their own competing business; or
- working for a competitor,
for a defined period of time after the employee’s employment has ended (i.e 6 months), and possibly within a defined area (i.e within a 5km radius of the employer’s business location).
The law automatically protects an employer’s confidential information from being misused by an employee whilst the employee is employed with the employer, even if there is no written employment agreement in place. However, being able to prove that an employee has misused such information after the employment has ended is far more difficult. Given this, a restraint of trade clause will generally be used so that an employer does not have to prove that a former employee has misused its confidential information – the employer will only have to prove that the former employee has breached the restraint of trade clause by starting their own business or working for a competitor within the restraint time and area. Such a clause is designed to continue the protection of the employer’s business and confidential information after the employment has been terminated.
It should be noted that such a clause may be invalid if it is unreasonable and goes beyond what is necessary to protect the legitimate interests of the employer’s business.
What do I do if an employee is away on unpaid maternity/paternity leave and it looks like their role will not exist when they came back?
An employee who has been on unpaid parental leave is entitled to come back to the job they had before going on leave.
If an employee’s job does not exist anymore or it has changed, then they have to be offered a suitable available job that:
- the employee is qualified and suited to work in;
- is nearest to their old job in pay and status.
If an employee’s job does not exist anymore after they come back from unpaid parental leave, this may mean a redundancy has taken place.
If the job still exists and someone else is doing it, then there is no redundancy.
For further advice, contact ABKJ today. Servicing the Gold Coast and surrounding regions.