Summary of Workplace Relations in Australia II,澳大利亚豪力法律服务微信公众号文章

3.Contract of Employment

(a) Each employment relationship is underpinned by an employment agreement.

(b) An agreement may be made verbally, in writing, or by a mixture of the two. It is not the case in Australia that a worker only has a contract of employment where there is a written agreement.

(c) Where a matter is not explicitly agreed to by the parties to the contract, certain terms or rules may be implied into the contract of employment. Terms may be implied to ensure that the contract operates effectively or to reflect the particular circumstances of a contract. It is most common for implications to be drawn as a matter of law.

(d) Australian courts have developed a number of default rules or implied terms that they consider to be part of any employment contract. For example, where the parties to an employment agreement have not provided for a period of notice of termination in the contract, the law will imply a term that the contract may be terminated by either party giving reasonable notice. Another example is the requirement to pay reasonable remuneration where no wage has been agreed to.

(e) Many workplaces may also have policies and procedures in place which outline expectations or requirements as to how employees behave, for example in relation to use of information technology, or the way employees treat fellow workers. As a general rule, this policies should not form part of the employment contract or impose contractual obligations on employers. However, employers will need detailed policies regarding expectations for conduct and behaviour if they wish to take disciplinary action against employees for failing to act in accordance with expected standards of behaviour.

4.Modern awards, minimum wage & superannuation

4.1 Modern Awards

(a) The FW Act provides for certain modern awards to stipulate further minimum entitlements for employees in specified occupations or industries which supplement the NES. These awards also specify minimum wages for those employees covered by the award.

(b) Modern award coverage is determined on an industry or occupational basis. An industry specific award will apply to employers and their employee’s who are engaged in a certain industry (e.g. manufacturing, banking and finance). An occupation specific award will cover employee’s employed in a specific occupation (e.g. architects, nurses).

(c) Modern awards will give employees entitlement to overtime payments for working outside ordinary hours, and may prevent requirements to work unreasonable overtime. There is some flexibility for these restrictions to be modified by individual agreement with employees provided they are better in overall terms by reason of the arrangement.

4.2 Minimum wage order

(a) The statutory minimum wage is set by the adult national minimum wage order made under the FW Act.

(b) The national minimum wage for a full-time adult is currently $656.90 per week, calculated on the basis of 38 ordinary working hours a week.

4.3 Superannuation

(a) In addition, the Superannuation Guarantee (Administration) Act 1992 (Cth) provides in effect that Australian employees receive a superannuation (pension) contribution of 9.5% of salary.

5. Enterprise Bargaining

(a) The FW Act regulates the making of collective agreements, known as enterprise agreements. These are agreements between one or more employer and at least two employees.

(b) For an enterprise agreement to receive approval from the Fair Work Commission (FWC), the FWC must be satisfied that each award-covered employee will be better off overall under the agreement than they would be if the relevant award applied. This requires a comparison between the conditions in the proposed agreement, and the minimum standards in any modern award that covers the employees in question.

(c) As with modern awards, enterprise agreements will often give employee’s an entitlement to overtime payments for working outside ordinary hours. An enterprise agreement may also provide for additional entitlements to leave of absence to that provided under the NES.

Editorial：Charles Power, Lauren Drummond

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Michael Selinger, Partner
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