jmhThere are many different ways for an employer to engage an employee, so it is vitally important that the employment contract correctly reflects the actual employment relationship.


Various employer/employee relationships

Employees are generally engaged on a:

  • full-time
  • part-time, or
  • casual basis.

The terms and conditions of employment may change if the employee is:

  • employed for a fixed-term
  • covered by an award or enterprise agreement, or
  • an executive employee.

Courts have found in many cases that employees are in fact a different type of employee to that stated in their employment contract. For example, workers who the employer considered to be casuals have been found actually to be permanent employees, with the result that they had access to employee entitlements such as the unfair dismissal jurisdiction or parental leave.

In the case of Williams v McMahon Mining Services, Mr Williams’ letter of employment noted that he was employed as a casual, however he worked the same hours on a set roster. The Court found that Mr Williams was not a true casual because he was employed on a regular systematic basis. As a result his employer was required to pay Mr Williams the entitlements of a permanent employee, including accrued annual leave.

What can happen if I use the wrong contract?

Using the wrong type of employment contract could result in:

  • accrual of leave entitlements
  • access to unfair dismissal
  • access to leave the employee may not otherwise be entitled to
  • a breach of industrial instruments, such as an Award, or
  • an underpayment claim.

Additionally, using the wrong type of employment contract could expose you and your company to the imposition of fines, including a maximum civil penalty of up to $33,000 in the case of a corporation, and $6600 for an individual.

The Employment Law team at Everingham Solomons is well equipped to assist you to prepare appropriate employment contracts for your staff because Helping You is Our Business.

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