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Contract of Employment - Part Time (Comprehensive)

Version 1.2 Updated 2 Feb 2023
Contract Recruitment

Who can use this contract?

This contract can be used by all employers throughout Australia, except the following excluded employers:

  •     Non-constitutional corporation employers in Western Australia
  •     State public sector employers (ie employees of a Minister, the Governor, or the Crown) except in Victoria; and
  •     Local Government employers - except in Tasmania and Victoria.

 

If any of the excluded employers wish to use this Contract of Employment - Part Time ('the contract') they should seek legal advice, as the contract complies with federal legislation which may be more or less generous than that which applies to those employers.

Commentary

This contract of employment (Contract) is suitable for part-time employees of all employers who can use this contract. The Contract is not intended to apply to full-time employees, casual employees or independent contractors.

It is a comprehensive contract which is approximately 12-23 pages in length (depending on the content you select when creating the document). If you would prefer something shorter for your part time employees, we recommend using the Contract of Employment - part-time (Simple) which is only around 4 pages in length.

Full-time versus part-time employment

A part time employee will generally be engaged for less than 38 hours per week with set days and hours of work.

By contrast, an employee engaged on a full time basis will be engaged for an average of 38 hours per week, as well as having set days and hours of work.

However, if an enterprise agreement or award (including a modern award, pre-modern award or state-based award) applies to the employee then you should refer to the relevant industrial instrument to determine what hours of work constitute full time work as it can on occasion be less than 38 hours.

If you are planning to employ a full-time employee you should use the Contract of Employment - Full Time (Comprehensive).

If you are unsure about the type of employee you are engaging, please contact the advice line.

Coverage
 
The Contract includes coverage of the following matters:

  •     nature and status of employment;
  •     reason for the contract;
  •     commencement date;
  •     position;
  •     probationary period;
  •     reporting relationship;
  •     location of employment;
  •     hours of work;
  •     remuneration;
  •     leave entitlements;
  •     compensation for all legal entitlements;
  •     return of property;
  •     confidential information;
  •     policies and procedures;
  •     superannuation;
  •     period of notice;
  •     redundancy;
  •     termination;
  •     medical assessments (including vaccinations); and
  •     personal information and privacy.


The Contract also includes optional clauses concerning:

  •     award/agreement covered employees;
  •     annualised salary (at common law. This is separate to the annual wage clause in          some modern awards);
  •     the protection of the employer’s intellectual property and moral rights;
  •     reporting lines;
  •     non-cash benefits;
  •     bonus and incentive payments;
  •     performance review;
  •     salary review;
  •     post-employment obligations including non-solicitation of customers, employees and suppliers;
  •     work related expenses and reimbursement for such expenses;
  •     company credit card;
  •     mobile phone;
  •     laptop;
  •     performance;
  •     the requirement to hold a drivers licence;
  •     zero tolerance of drugs and alcohol in the workplace;
  •     the requirement to wear and launder a uniform;
  •     continuing education;
  •     leave;
  •     returning the employer’s property on termination; and 
  •     resignation from offices/directorships held.
 
    Particular matters to consider
 
    Certain classes of employee

  •     employees subject to awards and enterprise agreements;
  •     employees employed in a sales capacity;
  •     employees under the age of 18 years;
  •     employees employed by public sector organisations;
  •     shift workers; and
  •     senior executive employees.


Circumstances for making the contract

The form and content of a contract of employment will differ depending on the circumstances. This will, in turn, affect what clauses you may put into the Contract. So, for example, the form and content of the Contract will be different for a junior receptionist compared to a senior executive.

For new employees, if a prospective employee does not agree with the terms in the Contract, then they will not accept employment.

However, an existing employee who does not receive any benefits from signing the Contract (eg additional remuneration, promotion) may decline to enter a new contract. Importantly, you should be aware that, even if an existing employee accepts the Contract, if the employee is not given any additional benefits in exchange for entering into the Contract (such as more money or other benefits), the new contract may be unenforceable.

Non-compliance with award/enterprise agreement obligations

The Contract is generic in nature and specific advice may need to be obtained before using it for award/enterprise agreement covered employees since non-compliance with the provisions of a specific award/enterprise agreement exposes the employer to a number of legal claims (such as underpayment and civil claims for breaching the terms of an award/enterprise agreement).

The Contract cannot be used to avoid the minimum entitlements under the National Employment Standards (NES). For example, a term in the Contract that pays an employee extra money in order to reduce their annual leave balance from 4 weeks to 3 weeks will be unenforceable because it is below the NES minimum annual leave entitlement.

The employer should also be familiar with the terms of the applicable award/agreement (such as averaging of hours (over 4 weeks or 26 weeks etc) and the payment frequency of wages (fortnightly, weekly etc.) before issuing this contract to a casual award/enterprise agreement covered employee. If the employer is unsure about the terms of the award/enterprise agreement and whether this Contract complies, please contact ABLA/WAU.

This Contract is not intended to override award/enterprise agreement obligations. The award/enterprise agreement referred to in the Contract is not intended to form part of the Contract, in an effort to protect employers from potential claims by employees for breach of contract arising out of unintended breaches of the relevant award/enterprise agreement.  

An employer who is using the Contract for award covered or enterprise agreement covered employees may wish to supplement the contract with an Individual Flexibility Agreement (IFA). Every award/enterprise agreement contains terms dealing with how an IFA can be made, terminated and what matters it can deal with. A template IFA is available in the Document Library page of the Workplace website.
 
Those employers may also give consideration to utilising the following optional clauses which are included in the contract:

  •     compensation for all legal entitlements; and
  •     annualised salary.

 
Compensation for all legal entitlements

A compensation for all legal entitlements clause will automatically appear in this contract.
 
This clause seeks to offset an employee’s total remuneration against any entitlement they may have under any law or industrial instrument, such as a modern award or enterprise agreement. Adopting this approach will not extinguish an employer’s obligations under an industrial instrument or alter the fact that technically an industrial instrument has been breached, nor can it protect an employer from prosecution and imposition of a penalty for that breach. However, it does give the company good grounds to argue that an employee has been compensated in full for all entitlements and the employee should not be permitted to ‘double recover’ the amounts, in particular where the employee is paid a salary well above the relevant industrial rates of pay.

You should be aware that it is not possible to ‘contract out’ of an industrial instrument using the Contract (see comments about an IFA). Accordingly, if an employee is entitled to minimum conditions of employment in accordance with an industrial instrument, you should comply with the relevant industrial instrument.

You should therefore carefully consider whether you will be able to rely on this clause and whether full compliance with the award/enterprise agreement, use of an IFA, giving a guarantee of annual earnings, or complying with an annualised salary provision of an award/enterprise agreement, are better options.

Post-employment restraints

Depending on the nature of the duties being performed by the employee who will be subject to the Contract, it may not be necessary to require an employee to agree to a post-employment restraint. You should seek to customise the restraint to relate to the specific employee.

In order for a post-employment restraint to be enforceable it must be 'reasonable' in the circumstances of the particular employee’s employment. This may mean it is not necessary to have a post-employment restraint clause at all for an employee who does not have access to clients, company intellectual property or confidential information.
 
Specifically, the restraint must be reasonably required to protect the legitimate business interests of the employer, having regard to the activities sought to be restrained, the geographic area, and the duration of the restraint. The courts will not enforce restraints that impose an unreasonable restraint of trade on an employee, or that extend beyond protecting the legitimate business interests of an employer.

The particular restraint clause included in the Contract includes provisions enabling a court, if it is to review the Contract, to read down the covenants in relation to the employee if they are found to be void, invalid or otherwise unenforceable. ‘Reading down’ the strict wording of an unreasonable clause means to modify it until the clause is expressed in a way that is legally enforceable. For example, a court may read down a restraint from 12 months to 6 months.

In NSW only, the Restraint of Trade Act 1976 gives the NSW courts power to read down the provisions of a restraint that would otherwise be unreasonable and thus unenforceable, unless the restraint is manifestly unreasonable on its face. That is, the employer should not include a clearly unreasonable restraint in a particular employee’s contract hoping it will simply be read down.

If the Contract is intended to be used for employees who are situated outside NSW, the courts in other states are unable to read down the provisions of a restraint and therefore must apply the clause as it is drafted or delete offending provisions. For this reason, we have drafted the restraint to include cascading provisions that can be severed to the extent that they are unreasonable or unenforceable.

Although we have drafted the restraint to include these cascading provisions, the post-employment restraint provisions must be very carefully considered, especially with respect to the geographic scope clause. Care must be taken to ensure that the restraints match the specific circumstances of your business. If there is any doubt about the drafting of the clause and its applicability to your circumstances, we strongly recommend that you seek legal advice. 

When writing restraints for potential employees it is advisable to obtain specific legal advice from ABLA/WAU.

Policies and procedures

There is an increasing willingness of courts to incorporate policies into employees’ contracts of employment. Contracts of employment that do not expressly exclude such incorporation may cause problems for employers. While the Contract contains an express exclusion, it is important that employers both comply with and broadly word their policies and procedures, to further reduce this legal risk. If employers don’t exclude the policies and procedures they run the risk of a situation where by breaching their own policies and procedures they may breach an employee's contract if it is incorporated.

Other leave

The 'Other Leave' clause in the Contract indicates that long service leave, parental leave, community service leave, family and domestic violence leave, and compassionate leave entitlements will be made in accordance with legislative requirements (NES).

If your policies provide for more generous entitlements, your employees may be entitled to receive such leave in accordance with your policies. Alternatively, you should seek legal advice before amending this clause of the Contract.

If you wish to implement a Leave Policy, we recommend utilising the Leave Policy available on Workplace.

Fringe benefits tax

The Contract allows for employees to be provided with benefits such as mobile phones, company vehicles and laptops, with limits provided for. You should seek financial advice in relation to potential fringe benefits tax liability before providing an employee with company property which the employee is allowed for personal use.

COVID-19 Vaccinations 

In response to the COVID-19 pandemic, we have included a clause that allows employers to mandate vaccination for new employees if that is a path your business wants to take. 

Mandating vaccinations is easy for new employees as you can make vaccination a condition of employment (subject to the applicant having a genuine medical contraindication which will need to be assessed on a case by case basis). Mandating vaccination for existing employees is trickier and may requires an assessment on whether that mandate is a reasonable and lawful direction in the circumstances. 

If your business plans to collect evidence of vaccinations, your business will also need to consider the requirements of the Commonwealth Privacy Act 1988 and the Australian Privacy Principles.  

This is obviously a new and difficult area so you may want to seek legal advice before implementing such a vaccination mandate.

Deduction of monies on termination

This Contract contains a clause that authorises the employer to deduct monies from the employee on termination if the employee owes the employer money. This clause may not be enforceable in all circumstances so we would recommend seeking advice prior to processing an employee’s final pay. 

Fair Work Information Statement

Remember, you also have to provide a copy of the Fair Work Information Statement to a new employee before they commence employment or as soon as practicable after the employee commences employment.  This is a requirement of the National Employment Standards.

Other matters

This commentary is not intended to be provided to the employee but is information for the employer creating the Contract.

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