Employment Legislation & Contracts Flashcards
What is a contract and what does it do?
When an employee accepts a specific offer of employment (oral or verbal) a contract of employment has been established.
Under the contract both the employee and employer have certain rights and obligations.
The contract of employment is the first step in laying the legal foundation of the employee/employer relationship.
Name 4 pieces of employment legislation.
Long Service leave Act
Anti- Discrimination Act
Workers Compensation Act
WH & S Act
A valid contract must contain 6 essential elements, what are they?
The intention of the parties to create a legal relationship
Offer and acceptance
Consideration
Capacity to contract
Genuineness of consent
Legality of object
What is the difference between a contract OF service and contract FOR service?
Employee provides a contract of service
Contractor provides a contract for their services.
10 items that should be included in a detailed employment contract
A contract should always:
Identify specifically the parties to the contract and duration.
Contains clauses in the document which specify the terms of the contract in the matter of payment and conditions.
Have attached to it and initialed by both parties, such documents necessary to specify the job responsibilities and qualify the employment conditions.
Reference made to what provisions of an existing award or agreement apply to the contract.
Entitlements to be included: Remuneration Frequency of remuneration reviews Period of the contract if fixed Basis of remuneration adjustments and performance management/appraisal Termination conditions Specific employment conditions Hours of work Annual leave Annual leave loading Public holidays Long service leave Superannuation Reimbursement of expenses Sick or carers leave Parental leave Other leave Job description
3 basic tests to determine if contractor or employee
The control test- looks at whether the payer can control the activities of the worker while work is being done. Employers exercise control over employees, but contractors work independently. They call shots of when will be done.
The risk test-a contractor takes an entrepreneurial risk, and only gets paid if the work is completed to a pre determined standard, unlike an employee who is paid regardless.
The labour test- is the employee paid for their labour or a the completion of the job. Employees are paid for hours worked. Contractor paid for completing a job.
Rights and responsibilities of employee
Employees must
Work - an employee has a basis duty to provide services to the employer. (Common law)
Obey the lawful and reasonable commands of the employer - employers demands must be reasonable and lawful
Display care and be competent in the performance of his/her duties- eg. Put in best efforts at all times,exercise a degree of competence in performing duties.
Be faithful to his/her employer’s interest-employees must not use the employers information, trade secrets, customer lists and the like for the benefit of the employee and to the detriment of the employer.
Rights and responsibilities of the employer
Pay wages - and deductions PAYG, child support,garnishees
Provide work -
Indemnify employees for expenses legitimately incurred in the course of their employment - reimburse out of pocket expenses
Provide a safe workplace
Vicarious liability- the rationale is the employee is performing work on behalf of the employer and thus it is the employer who should be liable if anything goes wrong. Debt to company not employee.
