How Employment Contract Lawyers Help In Resolving Workplace Issues

What employment contracts contain

When you were hired you had a contract of employment that regulated the relationship between you and your employer. The contract of employment or employment agreement contains the terms and conditions of the employer-employee relationship.

The employment contract must include certain provisions that the law requires all employment contracts to contain. For example, even when there is nothing specific stated in the contract of employment, there is a requirement for the employer to pay the employee an amount that is equal to or higher than the legal minimum wage.

Generally, an employment contract must include the name and contact details of both the employer and the employee. It must contain the date the contract starts and ends (if it is a fixed-term contract), the probationary period, if any; the position or job title; the duties or role; the employment status (if full time, part-time or casual) and to whom the employee will directly report to.

The contract must also provide the rate of pay, the hours of work, the shift or roster (if any), meal breaks, penalties, bonuses, leave entitlements and allowances as well as the period of notice when the employment is to be terminated.

The employment contract may also contain provisions regarding the uniform or dress code, the requirement of confidentiality, the use of work equipment and machinery as well as the company rules and polices.

Employment contracts need not be written

Contracts, including employment contracts, are a meeting of minds between an employer who seeks to hire a worker and a worker who seeks to work and be paid for the service they render. Although generally, most employment contracts are written, the absence of a written agreement does not mean that no employment relationship was created.

The usual process of creating an employment contract

The process of creating an employment contract usually starts when the employer puts out notices that they are hiring and the potential employees apply for the job. There may be a written test, a job interview, or a practical test to determine the suitability of the applicant’s skills for the requirements of the job. The employer will then send the applicant an offer of employment.  The applicant must accept the offer of employment and communicate their acceptance of the terms and conditions in the offer.

Binding nature of employment contracts

When the employer and the applicant enter into an employment relationship, they agree to be bound by the terms and conditions of their employment contract. Both the employer and the employee must comply with their agreement. If either party decides to change the terms and conditions, there must be notice to the other party.  Unless the contract itself specifically allows either party to vary the terms and conditions of the contract, any unilateral change is prohibited. And if either the employer or the employee changes the terms of the contract, they may be liable in damages for a breach of the agreement.

When employers can vary employment contracts

When a law is passed that requires a change in the terms and conditions, such as when the legal  minimum wage rate is changed, for example, the employer can vary the terms and conditions by increasing the minimum wage rate of the employee. Any changes made by employers on the employment contracts of their employees must be made with notice to the employee.

When employers cannot vary employment contracts

Employers are prohibited from varying employment contracts when to do so is to discriminate against an employee who has protected status. One example is when an employer changes the working hours or salary rate of an employee who falls pregnant. Employers cannot vary a contract of employment when the employee exercises a workplace right, makes a complaint or inquiry, does or does not engage in union activities. To vary a contract under these circumstances is to commit an act of retaliation or discrimination against an employee for exercising a workplace right.

When employment contract lawyers can help

Employment lawyers can give you advice. When you receive an offer of employment, you can ask an employment contract lawyer if the terms and conditions, especially the rate of pay follows the legislated minimum wage or an existing industry award or enterprise agreement. There are different rates of minimum wage depending on the industry and there are certain awards and enterprise agreements that provide for different terms of employment. Employment contract lawyers can give you information on these matters.

Employment contract lawyers can help support you when the employer unilaterally varies your contract of employment without notice to you. If the employer reduces your work hours or your pay rate, you can seek advice and representation from an employment contract lawyer so that you can obtain your legal entitlements.

Employment contract lawyers can communicate with your employer on your behalf. In the case where your employer has breached your employment contract, an employment contract lawyer can write your employer explaining your concerns and asking that the breach be remedied.

Employment contract lawyers can assist you in lodging a claim or application with the Fair Work Commission, the federal court or the magistrates court. If  your employer has violated any of the terms and conditions of the employment contract, an employment contract lawyer can help you lodge an application for damages. And if you have been unfairly dismissed, an employment contract lawyer can help you lodge a complaint for you to get reinstated or for you to receive backpay and damages.

Case sample

In the case of Perrin, Holden and Ahearn v Pilbara Iron Company (Services) Pty Ltd WAIRC 00137 (20 March 2019), mineworkers brought a claim for contractual benefits. The mine had two types of workers: those who commute and those who reside in the area. Under their employment contract, the commuters were promised an allowance for when they spent nights away from their base of operations on a one-off basis (for when there was an emergency, for example) plus additional payments when they worked a night shift.

The mineworkers alleged that they received these payments from 2014-2015 and then, suddenly, the employer gave them the disruption allowance only for the first and the last night they spent away from the basecamp. This happened because the employer introduced a new scheme of payment. The mining company justified its unilateral varying of the contract and changing the payment of disruption allowance because the payment of the disruption allowance was discretionary and not part of the contract of employment. By paying only the first and the last night spent away from the basecamp, the additional pay they received would be more consistent with the pay received by the residential employees.

The Western Australia Industrial Relations Commission (WAIRC) declared that employers cannot unilaterally vary the contracts of employment by reducing the workers’ entitlement to the disruption allowance. However, the Commission found that there were different types of employees in the workplace and some workers’ contracts entitled them to a higher rate of pay when they worked a night shift. If the employer made a mistake and also paid them a disruption allowance in the past when they had no entitlement to it in their contract of employment, then they were paid additional amounts that should be regarded as extra.  When the employer refused to continue paying them this extra amount, the workers cannot force the employer to pay them the extra if their contracts did not provide for this.