Would you know where to find your employment contract in a hurry? Is it in a filing cabinet at work, or perhaps saved on a work computer?
Your contract is the first document you’ll need to get hold of if something goes wrong in the workplace. We recommend you store it in a safe place away from the workplace, and, ideally, electronically so that you can easily access it.
As an employment lawyer, I’ve had many clients approach me for advice about their employment rights. Quite a few have no idea where there contract is but describe it as a ‘standard contract’.
As someone who reads employment contracts every day, one thing I can guarantee is that all contracts are not created equal. While there are likely to be general terms contained in most employment contracts, there is no such thing as a standard contract.
What is an employment contract?
Whenever you start a new job, a legal contract is formed between you and your employer. Usually, that contract is set out in writing in the form of an employment contract. It is often the most important document governing your terms of employment. This is because it may provide additional rights and responsibilities on both parties, over and above strict entitlements at law.
Your contract may determine your right to enforce any bonus schemes, your right to procedural fairness if you are alleged to have engaged in wrong doing or poor performance, and the ability of your employer to dismiss you.
What if I don’t have an employment contract?
All employees will have an employment contract. However, not all employees will have a written contract of employment. Some employees have never received a written employment contract and some employees don’t have a written contract that governs their current employment (for example if someone has been promoted and their contract no longer governs their new position).
The fact that you do not have a written contract of employment is, of itself, very important. For example, a long standing employee who does not have a written contract of employment and who is not covered by an Award or Enterprise Agreement may need to be given ‘reasonable notice’ from their employer before the employment can be terminated.
Reasonable notice is determined on a case by case basis and will depend on circumstances including the employee’s age and length of service, status, and job mobility. In some circumstances, the amount of reasonable notice that an employer must provide could be up to 12 months or more.
Employees who do have a written contract may also be able to obtain reasonable notice if their contract does not contain an express notice period.
What if I am not sure if I have an employment contract?
If you aren’t sure whether or not you have a current employment contract, you should take steps to find out sooner rather than later, ideally before any workplace issues arise.
As a first step, you should look through your records, including your emails. If you can’t locate it, you can ask your employer to provide you with a copy. But your employer is not obliged to provide you with a copy of your contract if you have lost your copy. Of course your employer is more likely to give you a copy if you ask for it when there are no contentious employment law issues at play.
Once you have your contract, you should store it in a safe place away from the workplace, and, ideally, electronically so that you can easily access it.
What if my employer wants to change my contract?
If your employer wants to change your contract you will need a copy of both the old and new contract so that you can compare your rights and obligations. Above all, you should always get legal advice about any proposed changes.
A client recently came to me wanting to enforce her contractual right to be paid out her untaken sick leave upon resignation. This is not usually a right afforded to employees, but her original contract provided for it as an additional entitlement.
Unfortunately, her employer had issued her with an ‘updated’ contract a couple of years prior to her resignation. She didn’t get legal advice on the new contract and agreed to all the new terms on the mistaken understanding that nothing had changed and that it was just an administrative update to the old contract.
Unfortunately her new contract did not afford her any right to be paid out her sick leave. This meant that she forfeited tens of thousands of dollars and had very little legal recourse. Had she sought advice when the new contract was put to her, she could have negotiated to keep the entitlement, or for some payment in lieu of the entitlement that she was giving up.
Don’t be afraid to ask questions about your contract, including what the terms actually mean, and the reasons your employer is seeking to make any changes. When contracts are modified by employers, it is usually to benefit the employer. As such, you should always get independent legal advice about how any modifications are going to impact you.