We at the Quinn Group often assist our clients in making written employment contracts. They are helpful in that they determine the boundaries and standards expected of the employment relationship and outline matters such as the employee’s role and payment. However, what happens when there is no written contract? We’ve taken a detailed look into what to do.
Contracts don’t have to be written: they can be verbal, as long as the requirements of a contractual agreement are fulfilled. These include, at the basic level: offer, acceptance, consideration and intention to be legally bound. If you don’t receive a contract of employment for example, the offer could be verbal, you could accept by attending your first day of work and you would have considered by providing work and being paid for that work. Importantly, you are better protected legally with a written contract, but it is not always necessary. This is because as an employee, you still have an entitlement to all the rights provided under the National Employment Standards should you not sign an employment contract.
One common query of those who are without an employment contract is ‘can I have express terms without a written contract of employment?’ Express terms within a contract are things an employee explicitly and expressly agree upon with the employer. While a contract lists these out, a boss may have a conversation with an employee to determine these express terms less formally. These express terms can still apply regardless of there being a written contract or not. However, if there is no contractual agreement that is written or even an email trail or letter of offer, it can be more difficult to prove evidentially the employment relationship should it be questioned.
Implied terms and statutory rights are also instated in the employment relationship, regardless of there being a written contract or not.
Notice of dismissal is often stated in a contract of employment, however, if there is none, the National Employment Standards provide that: you have a minimum of one weeks’ notice of dismissal if you have worked continuously for your employer for one month, but less than two years. After two years’ employment, a further one week’s notice is required for each whole year of continuous employment up to 12 weeks.
If you would like help with respect to employment law, please contact one of our experienced lawyers by clicking here to submit an online enquiry form, calling us on 1300 QUINNS or alternatively, +61 2 9223 9166 to arrange a teleconference or appointment. We can draft an employment contract for you or provide you with a template. You can also order a free copy of our eBook on employment and contracting in Australia by clicking here.
A restraint of trade in an employment contract refers to a clause applying typically when an employee leaves a business or company. As an employer, it is always a good idea to include one of these clauses to protect trade secrets and to help avoid losing business as a result of a rogue ex-employee. Read on for more information on what to include in an employment contract.