Understanding Employment Contracts

Employment contracts contain terms and conditions that the employee and employer agree upon.

Ideally, this contract should be written rather than confirmed verbally to avoid miscommunication or misunderstandings.

You should include the following terms and conditions in your employment contracts:

  • Name and personal details of the employer and the employee
  • Commencement date of employment and probation period (if a permanent employee)
  • Clause referring to employer policies and procedures
  • Clauses referring to essential requirements of the role, e.g. Licences, clearances, registrations
  • Type of employment (i.e. full-time, part-time or casual)
  • Place of work and hours of operation of the business
  • Remuneration clause – setting out the method of payment e.g. salary, wage, or piece-rate) and what is included or paid separately e.g. superannuation, loadings, overtime, bonuses, benefits and allowances. Commission is usually set out in a separate scheme.
  • Leave entitlements – the NES provides compulsory minimum standards for various types of leave e.g. annual leave, personal leave, long service leave
  • Clauses protecting employer property and information – e.g. company vehicle, intellectual property
  • Confidentiality agreement making clear what employer information should be kept confidential and setting out the possible consequences of a breach
  • Non-disparagement clause preventing the employee from any action which can reflect negatively on the company
  • Amount of notice required to be given by the employer and employee to end the employment relationship (there are minimum notice periods under the Fair Work Act)
  • Termination conditions, including Redundancy
  • Clauses regarding Assignment, Jurisdiction, Severability and Variation of Terms

Contracts may also contain implied terms, i.e. not misusing confidential information.

Employment contracts are also governed by legislation which provides further information about the minimum terms required, remedies that can be utilised, and basic regulatory frameworks.

The industry you are in may also have additional industry-specific requirements that are legally reinforced.

Employment breaches occur when employers or employees fail to comply with the contract terms. The innocent party may be entitled to sue for the damages that have occurred due to the breach – so that they can be restored. A substantial breach may also allow an immediate termination of the contract and additionally allow individuals to sue for any loss incurred.

If an employer or employee has breached a contract, it may be easier to navigate the difficult processes that need to be completed with the help of a legal advisor. This is because a breach of contract can be fairly nuanced, and information provided on websites may not be sufficient enough to lead the process without help from a legal professional.

The government can provide free or concessional legal advice, which should be utilised if required, as legal proceedings can often be costly.

Potential Legal Issues That Can Arise From IP

Legal issues can arise from various angles in the business world, but one particularly significant concern is intellectual property (IP) rights.

Intellectual property encompasses creations of the mind, such as inventions, literary and artistic works, symbols, names, and images used in commerce. Here, we explore the complexities of IP and the potential legal issues that can emerge for businesses.

Trademark Infringement

Businesses often invest heavily in branding, creating logos, names, and slogans that distinguish their products or services. Using a trademark that is too similar to an existing one can result in trademark infringement. This legal issue can lead to lawsuits, brand dilution, and damage to a company’s reputation.

Copyright Violation

Companies generate and use plenty of creative content, such as marketing materials, website content, and software. Unauthorised reproduction, distribution, or public display of copyrighted materials can result in copyright infringement claims, which may lead to substantial fines and legal penalties.

Patent Disputes

In the technology and innovation-driven business world, patent disputes are common. Companies may inadvertently or intentionally infringe upon existing patents, leading to litigation, financial settlements, or even forced product production or sales cessation.

Trade Secrets Misappropriation

Protecting valuable trade secrets is paramount for businesses. Employees, contractors, or competitors who gain unauthorised access to sensitive information can face legal action for trade secret misappropriation, resulting in financial losses for the affected business.

Licensing and Contracts

Failing to properly negotiate, draft, or adhere to licensing agreements, contracts, and non-disclosure agreements can lead to contractual disputes and lawsuits. It’s essential to ensure that all parties understand and fulfil their obligations.

Domain Name Disputes

In the digital age, domain names are valuable assets. Businesses may encounter domain name disputes when a third party registers a similar domain name. Resolving these issues can be complex and time-consuming.

Counterfeiting and Piracy

Counterfeit products’ proliferation and digital piracy pose a significant challenge for businesses. Protecting intellectual property rights against counterfeiters and digital pirates requires robust legal strategies and enforcement efforts.

To mitigate these legal issues, businesses should take proactive measures:

  • IP Protection: Register trademarks, copyrights, and patents as necessary to safeguard your intellectual property.
  • Clear Contracts: Develop clear, legally binding contracts with employees, partners, and vendors that protect your IP.
  • Continuous Monitoring: Regularly monitor your IP landscape to identify potential infringements and take swift legal action when necessary.
  • Legal Counsel: Consult with legal experts specialising in intellectual property law to navigate complex issues and ensure compliance.

In the competitive business environment, understanding and addressing intellectual property rights and potential legal issues are crucial to protecting your assets and reputation. By proactively managing your IP and seeking legal guidance when needed, you can minimise the risk of encountering costly legal disputes.

What Are You Entitled To After Being Terminated From Your Role?

If you’ve been given notice of your employment ending, you want to ensure you’ve received the correct notice and entitlements by the end. The best way to do this is by speaking with your employer – and preparing to do so is key.

What You Need Beforehand:

  • Any letters, texts or emails your employer has sent you about your employment ending
  • Information from the Fair Work Commission regarding notice and pay requirements for dismissal, redundancy and final pay.

The Steps You Should Take

Understand your situation

  • Check why your employment is ending. The business may no longer need your job (redundancy), or your employment may be terminated for another reason (dismissal). This could affect the notice your employer needs to give you and what you are entitled to be paid.
  • You won’t be entitled to notice if your employer dismissed you for serious misconduct, or if you’re a casual employee. Check if you’re entitled to notice
  • Not all employees are entitled to redundancy pay when their job is made redundant. Check who is entitled to redundancy pay.
  • Check if you’re covered by an award.
  • Check your employment contract. You might be entitled to a more extended notice period or redundancy pay than your award or registered agreement says.
  • Check for any workplace policies that might apply to your circumstances.

Check if your employer has followed the rules

  • Check whether your employer complied with their redundancy or dismissal obligations specific to your award or registered agreement, your employment contract, or any workplace policy. These often address redundancy and dismissal.

Speak with your employer

  • Speak with your employer first if you believe they haven’t followed their obligations or you have questions about the dismissal. Make a time that suits you both.
  • Prepare for the discussion. Write down what you want to get out of the meeting and list out talking points.
  • Bring a support person along to the meeting if that helps you. Sometimes, this can help you remember what was said.
  • Be calm at the meeting. Discuss your situation with your employer and show them the information you’ve found. Follow up in writing after the meeting.

Follow up the meeting with your employer

  • Allow time – for example, one week – for your employer to respond to the issues raised at the meeting. If you’ve been dismissed, remember there are time limits on making applications to the Fair Work Commission for unfair dismissal.
  • Follow up on your employer’s response.
  • Try to reach an agreement with your employer about the end of your employment. Contact the Fair Work Commission or a legal advisor if you can’t resolve the issue and need more support.

Does Australia Have Conservatorship Laws?

There has been a lot of news lately emerging from America about conservatorships and managing finances for those incapable of doing so. It may have caused you to question if conservatorships exist in Australia or if there is an equivalent.

Australia doesn’t have “conservatorships” in the sense that America has, but instead has guardianship and financial management laws for each state and territory.

Australia has three primary legal options for appointing other people to manage your money and affairs.

  1. The Supreme Court
  2. State-based mental health laws for temporary financial management (where an individual is detained in a mental health facility)
  3. State-based guardianship tribunals (which differ from state to state).

In most cases, financial management and guardianship laws relate to people who have been deemed incapable of managing their affairs or are considered needing a financial manager or guardian because of a disability.

Financial managers (sometimes called “administrators”) take care of the money side of things while a personal guardian makes decisions around their health and lifestyle.

To have a financial manager or guardian appointed, a person must apply to the court or a guardianship tribunal. The applicant might be a government employee, a family member, a service provider or a medical professional who forms the view the individual in question can’t make their own decisions.

When someone applies to a tribunal to have a financial manager appointed, the tribunal will consider factors such as

  • how capable the person with a disability is and what might in in their best interests
  • what family support they have around them
  • what might occur if a financial manager was not appointed.

In Australia, it has become a growing trend for those who have been diagnosed and are living with dementia to appoint financial managers. This may be to prevent financial abuse, or it could be a form of financial abuse itself.

Another rise has resulted from those who are participants in the NDIS to require financial managers and guardians appointed when their affairs had previously been informally managed by friends or family.

Implementing a financial manager should be done so with the assistance of legal professionals, such as a solicitor or adviser.

Can A Will Legally Be Changed After Death?

Contrary to popular belief, a will may be effectively changed after a person’s death.

Entering a deed of family arrangement (DFA), also called a deed of variation, is a way to vary the terms of a will. This agreement can be established provided that all interested parties come to a consensus on a particular outcome.

A DFA is a viable option in certain circumstances where a consensus can avoid the costly and time-consuming litigation process in courts.

Doubts About The Meaning Of The Will

There is no guarantee that the deceased person was in a sound state of mind when drafting the will or had received legal assistance. Using a DFA, interested parties can amend any uncertainties in a way that is most favourable to them rather than judgements from courts.

Redistributing The Estate

Beneficiaries may wish to redistribute the estate amongst themselves or may need to change the allocation of assets if new parties are added to the will. Although the specifics of succession law differ amongst the states, an interested party with a close personal relationship with the will-maker can apply to contest the will if they are left out.

Deliberate exclusions written into the will and long estrangements may not be enough to prevent a claim from succeeding. The court will weigh up financial circumstances, disabilities, age and the nature of the relationship to reach a decision. If the claim by the interested party is likely to succeed, a DFA will amend the will with greater resource efficiency than the courts.

Block A Challenge To The Will 

If an interested party not listed as a beneficiary seeks to challenge the will, a DFA may come in handy. The deed can be used to compromise a claim against the estate agent where there is a challenge to the will. However, this rule differs in states like Queensland and Victoria, where parties cannot contract out of their rights to bring a family provision claim.

Create An Estate Proceeds Trust

An estate proceeds trust (EPT) allows the movement of assets between beneficiaries to occur in the most tax-effective way. Remember that under current tax legislation, a person receiving property via a will from a deceased individual has three years from the death of the deceased to transfer the property to the EPT.

Eligibility And Document Checklist:

Legal advice would be helpful to obtain before drafting a DFA. Follow this checklist once the decision is made to ensure your document is binding and complies with taxation legislation.

  • All interested parties, beneficiaries and the executor should sign the deed to demonstrate the mutual consent of all involved.
  • In certain states, the court may approve the document, providing certainty.
  • No adverse Capital Gains Tax consequences will be incurred if requirements of section 128-20(1)(d)(i) of the Income Tax Assessment Act 1997 are met.
  • Applying for eligible concessions minimises any Stamp Duty (if eligible) triggered by the agreement.

Warning Employees Could Prevent Unfair Dismissal Claims – Here’s How

Warnings are an essential workplace tool in helping to ensure that employees understand their employer’s expectations. They also serve as evidence of a fair performance management process and provide supporting evidence should the employee be terminated.

Warnings can play a crucial role in defending unfair dismissal claims as it provides evidence that the employee was aware that they were displaying unsatisfactory workplace performance and conduct.

A workplace warning is defined as a communication, be it verbal or written, to an employee about their performance or conduct at work. Warnings are a tool used to communicate an identified area where an employee needs improvement or where their conduct does not meet the required standard.

The aim of delivering a workplace warning is to give the employee an opportunity to improve their workplace performance or conduct. Verbal warnings are usually administered before a written one as they are less informal and are generally of a less serious nature. That is, they do not warrant summary dismissal.

Once a warning has been issued, the employee’s performance or conduct is usually monitored for a set period.

A written warning should be issued after a warning meeting has taken place. After the meeting, the employee is advised that they will be receiving a written warning in the following couple of days.

Generally, most written warnings will comprise of the following:

  • record who was present at the warning meeting
  • record the fact that the employee was invited to have a support person present
  • outline the conduct or performance which is the reason for the warning
  • where appropriate refer to a relevant policy or the employment contract
  • refer to previous warnings that were issued
  • record the employee’s responses to the matters in issue
  • clearly state that the employee needs to improve, including an explanation of the consequences for failure to improve
  • where relevant, provide support for the employee to improve such as training
  • preferably be countersigned by the employee as evidence of their understanding of the warning

There is no legal requirement regarding how many warnings must be given before termination. The unspoken rule is to use between one to three written warnings to ensure the employee is given enough notice and time to improve their performance or conduct.

Flexible Working Arrangements In The New Financial Year

Changes to flexible working arrangements have been in place since 6 June 2023. If you haven’t done so already, now is the time to get acquainted with the new legislation (The Secure Jobs, Better Pay Act 2022 (Act)).

The legislation has updated the laws governing requests for flexible working arrangements and introduced new provisions that enable the Fair Work Commission to settle disputes related to such requests.

The Act enhances the existing rights to request flexible work arrangements as outlined in section 65(1A) of the Fair Work Act 2009 (Cth) by broadening the situations in which an employee can seek flexible arrangements.

This now includes cases where an employee, or someone from their immediate family or household, encounters “family and domestic violence”, as outlined in section 106B(2) of the Act.

Additionally, the Act incorporates a new section, 65A, mandating that an employer who receives a request for flexible work arrangements must:

  • meet with the employee to discuss their request for flexible work; and
  • if the employer plans to decline the flexible work request, either reach a mutual agreement on alternative changes to the employee’s working arrangements and record the agreed-upon changes in the employer’s written response; or
  • should the employer still intend to refuse the request, specify the reasonable business grounds for the refusal and address the following:
    • possible adjustments to the employee’s working conditions that could accommodate (to a certain extent) the employee’s situation and that the employer is willing to make; or
    • that the employer is unable to implement such adjustments to accommodate the employee’s circumstances.

The Act introduces a dispute resolution mechanism for situations where an employer has:

  • denied a flexible work request; or
  • failed to provide a written response to a flexible request within 21 days; and
  • the parties cannot resolve the dispute through discussions at the workplace level.

Employers should ensure they are in compliance with the new conditions by:

  • updating their approach to assessing and responding to employees’ flexible work requests to incorporate the requirements to:
    • meet with the employee and discuss their request; and
    • inform the employee of any changes to working arrangements the employer is willing to consider to accommodate their situation.
  • assessing any barriers to their ability to provide flexible working arrangements to employees (considering the nature of the business) and the potential evidence needed to demonstrate these barriers.

A Case For Workplace Policies

Workplace policies are not reserved for big corporations; small businesses are increasingly subject to unfair dismissal and adverse action claims that could be minimised by implementing workplace policies.

Now is an excellent time for employers to set or review workplace policies. Workplace policies set the framework for expected employee behaviour and performance; and the consequences of not complying with their responsibilities.

Well-enforced policies can provide employers with a basis for defending potential liabilities if a legal dispute arises between an employee and employer. A workplace policy clarifies functions and employee responsibilities and ensures uniformity and consistency across all operational procedures.

Although not all workplace issues require a policy, employers should have policies for fundamental problems, such as antidiscrimination and equal opportunity, code of conduct, anti-bullying, sexual harassment, privacy, drug and alcohol use, and workplace health and safety.

For a workplace policy to be effective, it must be publicised and provided to both new and existing staff members. A policy should set out the aim of the policy, why it was developed and who it applies to.

It should clearly outline acceptable and prohibited behaviour and disciplinary action for breaching the policy.  Employers must include a date for when the policy was developed and be sure to regularly review and update policies where necessary.

Any changes to employment law and/or your industry’s award or agreement may require a review of your policies and procedures.

Policies must be explained in full and employees should sign off on documents to acknowledge their awareness and understanding of policies. For policies to work effectively, a breach of policy should be implemented and objectively followed by all levels of management, according to the procedures set out in the policy.

Separating? Here’s Your List Of What Needs To Happen

Seek Legal Advice

Seek legal advice concerning access to children, marital property and financial matters.

Suppose you are unsure of your legal position or want to look after your own divorce. In that case, a solicitor can assess your situation and advise you concerning your legal rights before you start negotiating with your ex-spouse.

Sever Joint Tenancies 

Joint tenancy means that if one of the joint owners dies, the deceased’s share is automatically passed on to the other joint tenant. This means that if you die, your interest may be automatically inherited by your spouse or partner. Severing the joint tenancy will ensure that your share is dealt with in accordance with your wishes.

Update Your Will

Before divorce, any gifts to your ex-partner in your Will remain valid. If you die suddenly during the separation process and before your divorce is finalised, your ex-partner may inherit your property.

Seek Financial Advice

You should seek financial advice before making any legal decisions. Seeking financial advice will enable you to make an informed decision about your future.

Know Your Legal  Limitation Periods

A Divorce Order cannot be applied before a period of 12 months of living separately and apart from your partner. Once the divorce order becomes final, a property application must be made within 12 months of divorce if a property settlement has not already been finalised.

Update Your Superannuation Death Benefit Nomination

A superannuation ‘death benefit’ includes the money in the deceased’s super account at the time of death plus any life insurance cover through the super fund. If your ex-partner is listed as your beneficiary, your death benefit may be paid to your ex-partner. You should review this situation.

Review Your Bank Accounts

It is important that you set up your own finances and restrict your spouse or partner’s access. If you open a new account in your name make sure than your pay is going into this account. You may need to talk to your bank to cancel any access you ex-partner may have to accounts in your name, and close off joint bank accounts. It may also be necessary to change joint loans and mortgages to require joint signatories to withdraw any funds and limit or cancel any redraw facilities.

Update Your Power Of Attorney

It is crucial that you revoke any Power of Attorney your partner or spouse may have. While they still have Power of Attorney, they may deal with your property or financial affairs after separation without your knowledge.

Provide Copies Of Financial Records To Your Solicitor

If you are separating from your spouse or partner, you may wonder how property and financial assets will be divided. When you meet with your solicitor about settling property and financial matters, you will be asked several questions about your circumstances, including joint and individual assets and liabilities, bank accounts, credit cards, shares, superannuation entitlements, and any business or company interests.

It is essential to have as much detail as possible, and it will help if you can bring copies of financial records, including statements and pay slips, with you.

Review Your Budget

Review your budget. You may need to speak to a solicitor about seeking interim property or spousal maintenance orders.

Buyer Beware – Why Pre-Purchase Inspections Are Important

Purchasing a new home is often one of the most significant financial decisions you will ever make.

With this in mind, purchasers must ensure they are not buying a problem that may cost thousands to repair down the track. What are pre-purchase inspections, and why are they important?

The “buyer beware” rule applies to the property’s condition and state of repair. A vendor is only required to disclose defects that affect the title of the property and the vendor’s warranties may not cover all the matters you may wish to consider before going ahead with the purchase. Pre-purchase property inspections should uncover any problems.

With this information, you can reflect on whether you wish to proceed with the purchase or walk away with your finances intact. Although things may look good on the surface, the buildings on the property may have hidden faults that are not obvious to the naked eye.

Problems may be masked by home improvements or a ‘quick makeover’ and are difficult to spot without knowing what to look for.

A pre-purchase building inspection is a written report outlining the condition of the property. The report will specifically check the structural integrity of the property and inform you about any problems.

A building inspection will not include information about the existing presence of termites or other pests. The presence of termites often goes on undetected for months or even years.

If the damage has already occurred, you may face substantial repair costs to rectify the problem. Therefore, we recommend that purchasers obtain a pest and building report prior to exchanging Contracts.

However, these reports should not be seen as all-encompassing. It is necessary to customise your enquiries according to the unique aspects of the property. Swimming pools, air-conditioning and electrical wiring, are examples of issues that may require further inspection.

In addition to giving you peace of mind, the outcome of these reports can be an important bargaining tool when discussing price with agents and vendors.

When you consider the huge financial investment you are about to make, the cost of obtaining these reports is relatively low in comparison.