Job Offers and Employment Contracts Summary:
- Comprehensive job offers and employment contracts enable clarity of the employment arrangement and can provide legally binding protection of business interests.
- A comprehensive job offer documents the intent of the parties to work together constructively based on the outcomes of the job description and the conditions set out in the offer document.
- An employment contract is the documentation of what was agreed at the start of the employment arrangement, which provides the foundation for more easily resolving conflicts and/or disputes if they arise during (or after) the employment relationship.
- There are rules around pay secrecy that prevent such clauses being enforceable in an employment contract.
Why are job offers/contracts necessary?
In Australia there is no legal requirement to have a written contract of employment. However, employment offers and contracts are important to provide clarity of the employment arrangement. The offer clarifies for both parties the employment arrangement being entered into, and the contract confirms that arrangement once it is accepted. In The H Factor, the job offer becomes the contract when it is accepted by the employee. The offer includes all of the components required to comply with the Fair Work Act.
We recommend being familiar with the Fair Work requirements for hiring employees, prior to making any employment offer.
In addition to the requirements to meet the minimum pay and conditions for employment, it is typical for employment contracts to include:
For employers, they can help to:
For employees, they can help to:
It is illegal under the Fair Work Act for an employer to coerce an employee into entering into an employment contract, and the terms of an employment contract can't be changed without informing the employee. Consent is required from both parties to make changes to an employment contract.
We recommend being familiar with the Fair Work requirements for hiring employees, prior to making any employment offer.
In addition to the requirements to meet the minimum pay and conditions for employment, it is typical for employment contracts to include:
- Confirmation of flexible work arrangements.
- Salary packaging arrangements.
- The employee and employer obligations for use or custody of company equipment - eg motor vehicles, laptops, and/or phones.
- Requirements for commercial confidentiality and/or avoiding conflicts of interest.
- Clarifying intellectual property rights.
- The requirement for compliance with policies and procedures and the potential for disciplinary action arising from breaches of them.
- Other conditions pertinent to the industry and/or specific to the business operations.
For employers, they can help to:
- Ensure a mutual understanding of the employment requirements and obligations.
- Protect their business interests.
- Demonstrate their compliance with employment laws.
For employees, they can help to:
- Understand their rights and responsibilities.
- Protect themselves from unfair treatment.
- Demonstrate the conditions which were agreed when accepting the employment arrangement.
It is illegal under the Fair Work Act for an employer to coerce an employee into entering into an employment contract, and the terms of an employment contract can't be changed without informing the employee. Consent is required from both parties to make changes to an employment contract.
Pay Secrecy
Employees have specific rights with regards to pay secrecy.
A job offer/contract cannot legally contain any clause that prevents an employee from exercising their rights to share information about their pay and/or conditions. Penalties could apply to an employer who includes such terms in their offer or contract.
A job offer/contract cannot legally contain any clause that prevents an employee from exercising their rights to share information about their pay and/or conditions. Penalties could apply to an employer who includes such terms in their offer or contract.
Types of employment
A Full-Time Employee
A Part-Time Employee
A Casual Employee
A person is a casual employee if they accept a job offer from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.
Once employed as a casual, an employee will continue to be a casual employee until:
Employers are required to provide every new casual employee a Casual Employment Information Statement (the CEIS) before, or as soon as possible after, they start their new job. The H Factor system will automatically include this in the job offer to a casual employee.
From 26th August 2024, The Fair Work Legislation Amendment (Closing The Loopholes) Act 2024 introduced a new requirement that the substance of the working arrangements be taken into consideration in determining whether a worker is a casual employee. Where an employee has been employed at least 6 months, and believes that their employment arrangement may constitute permanent employment, then they may request their employer, in writing, to be made permanent. The employer has 21 days to consult with the employee and respond to such a request and must oblige unless they have a justifiable reason for denial. Justifiable reasons for denying such a request can include:
A Fixed-Term contract Employee
Fixed term contract employees are employed for a specific period of time or task. For example a 6 month contract where employment ends after 6 months.
Fixed term employees are different to permanent employees who are employed on an ongoing basis until the employer or employee ends the employment relationship. Fixed term contract employees are usually full-time or part-time employees.
Full-time or part-time fixed term employees are generally entitled to the same wages, penalties and leave as permanent employees. An award or registered agreement may provide extra terms and conditions for a fixed term employee.
Unless exempted, the term of a fixed term contract cannot exceed 2 years. A fixed term contract can be extended one time only, and any extension cannot result in the fixed term contract exceeding the 2 year limit. The Fair Work site provides more details about the rules for fixed term employment contracts.
A Shift-Worker
A shift-worker is an employee who works shifts and gets an extra payment for working shift hours.
An award, enterprise agreement or other registered agreement can have a specific definition of what a shift-worker is, and what type of shifts they can work.
Daily Hire and Weekly HireEmployees can be hired as daily or weekly hire employees in the following industries:
Before employment begins, employers have to tell employees in writing what they're employed as. This can be daily hire, weekly hire (full-time or part-time) or casual.
Probation Employees
Employers can put their employees on a probation period (also known as a probationary period) to assess if employees are suitable for the role and business.
The employer decides on the length of the probation period. It can range from a few weeks to a few months at the start of employment.
While on probation, employees continue to receive the same entitlements as someone who isn’t in a probation period.
If hired on a full-time or part-time basis, an employee on probation is entitled to:
If an employee doesn’t pass their probation, they are still entitled to:
Apprentices and Trainees
Apprenticeships and traineeships are types of formal training arrangements that combine work with study for a qualification. These arrangements have to be registered with an appropriate state or territory training authority. Time-frames for registering apprentices varies from State to State. The period before the registration date can also count towards the apprenticeship. Please refer to the relevant state and territory training authorities listed below for further information.
As well as working with and receiving on the job training from an employer, apprentices and trainees will have to attend a registered training organisation (RTO), such as a TAFE or trade school.
- usually works, on average, 38 hours each week.
- can be a permanent employee or on a fixed-term contract
- is entitled to paid leave including annual leave and sick & carer’s leave
- is usually entitled to written notice, or payment instead of notice, if their employer terminates their employment.
A Part-Time Employee
- works, on average, less than 38 hours per week
- usually works regular hours each week
- can be a permanent employee or on a fixed-term contract
- is entitled to paid leave including annual leave and sick & carer's leave
- is usually entitled to written notice, or payment instead of notice, if their employer terminates their employment.
A Casual Employee
A person is a casual employee if they accept a job offer from an employer knowing that there is no firm advance commitment to ongoing work with an agreed pattern of work.
Once employed as a casual, an employee will continue to be a casual employee until:
- they become a permanent employee through:
- casual conversion, or
- being offered and accepting full-time or part-time employment, or
- they stop being employed by the employer.
Employers are required to provide every new casual employee a Casual Employment Information Statement (the CEIS) before, or as soon as possible after, they start their new job. The H Factor system will automatically include this in the job offer to a casual employee.
From 26th August 2024, The Fair Work Legislation Amendment (Closing The Loopholes) Act 2024 introduced a new requirement that the substance of the working arrangements be taken into consideration in determining whether a worker is a casual employee. Where an employee has been employed at least 6 months, and believes that their employment arrangement may constitute permanent employment, then they may request their employer, in writing, to be made permanent. The employer has 21 days to consult with the employee and respond to such a request and must oblige unless they have a justifiable reason for denial. Justifiable reasons for denying such a request can include:
- The relationship still meets the definition of a casual employee.
- Fair and reasonable operational grounds for not accepting the request including substantial changes to the way work is organised, substantial changes to the operations of the business, or substantial changes to the employee's employment conditions would be required to ensure the employer's compliance with Awards or agreements.
- Conversion to permanent would mean that the employer does not comply with a recruitment selection process by or under law.
A Fixed-Term contract Employee
Fixed term contract employees are employed for a specific period of time or task. For example a 6 month contract where employment ends after 6 months.
Fixed term employees are different to permanent employees who are employed on an ongoing basis until the employer or employee ends the employment relationship. Fixed term contract employees are usually full-time or part-time employees.
Full-time or part-time fixed term employees are generally entitled to the same wages, penalties and leave as permanent employees. An award or registered agreement may provide extra terms and conditions for a fixed term employee.
Unless exempted, the term of a fixed term contract cannot exceed 2 years. A fixed term contract can be extended one time only, and any extension cannot result in the fixed term contract exceeding the 2 year limit. The Fair Work site provides more details about the rules for fixed term employment contracts.
A Shift-Worker
A shift-worker is an employee who works shifts and gets an extra payment for working shift hours.
An award, enterprise agreement or other registered agreement can have a specific definition of what a shift-worker is, and what type of shifts they can work.
Daily Hire and Weekly HireEmployees can be hired as daily or weekly hire employees in the following industries:
- building and construction
- plumbing.
Before employment begins, employers have to tell employees in writing what they're employed as. This can be daily hire, weekly hire (full-time or part-time) or casual.
Probation Employees
Employers can put their employees on a probation period (also known as a probationary period) to assess if employees are suitable for the role and business.
The employer decides on the length of the probation period. It can range from a few weeks to a few months at the start of employment.
While on probation, employees continue to receive the same entitlements as someone who isn’t in a probation period.
If hired on a full-time or part-time basis, an employee on probation is entitled to:
If an employee doesn’t pass their probation, they are still entitled to:
- receive (at least 1 weeks) notice when employment ends
- have their unused accumulated annual leave hours paid out.
- accrue and access their paid leave entitlements such as annual leave and sick leave.
Apprentices and Trainees
Apprenticeships and traineeships are types of formal training arrangements that combine work with study for a qualification. These arrangements have to be registered with an appropriate state or territory training authority. Time-frames for registering apprentices varies from State to State. The period before the registration date can also count towards the apprenticeship. Please refer to the relevant state and territory training authorities listed below for further information.
As well as working with and receiving on the job training from an employer, apprentices and trainees will have to attend a registered training organisation (RTO), such as a TAFE or trade school.
WHEN USING THE H FACTOR SYSTEM
What will the candidate receive when the system emails the offer?
- The candidate will receive the Offer of Employment in email.
- After the candidate clicks the link, they will be directed to The H Factor website's job offer page and they will need to enter the Job Offer ID.
- The Employment offer includes Job description and employment contract.
- Once the candidate has accepted the offer, they will receive a congratulatory message then offer will become the employment contract and it will be sent to their email address.
WHAT WILL HAPPEN AFTER THE CANDIDATE ACCEPTS THEIR EMPLOYMENT OFFER?
When the offer is accepted, the system automatically creates their system user access, allocates them to their position, and allocates them their induction activities that were created with the job offer, to show in their My Actions page.
Can we still update employment offers?
You still have 3 options in updating the Employment contracts under Pending and Expired Offers.
An offer can not be updated after it has been accepted. You can re-issue a new offer and stipulate that it replaces any offer preceding it.
- Add Induction Activity - It's important to set up the induction activity before sending the employment contract because the induction activities will be automatically assigned to the new employee after they accepted the employment offer.
- Update Employment Offer - You can still update any information in the employment contract and you also have the option to Make a Copy of the employment contract.
- Delete - There's also an option to delete the employment contract.
An offer can not be updated after it has been accepted. You can re-issue a new offer and stipulate that it replaces any offer preceding it.
can we send an employment contract to current employees who will be assigned to a new position?
If you have an employee who will be assigned to a new position, you can create the employment offer then there's a check box for "Existing Employee?". If this box is checked then the the system will not create their user record, or send their welcome email. It will allocate the person to their new position after they have accepted the offer.
what is the purpose of the employer contact in the offer?
It will serve as the initial contact of the candidate in the company. When they accept the offer, the employer contact you entered in this form will be notified and emailed a copy of the accepted offer.
WHAT ARE THE THREE TYPES OF OFFERS IN THE SYSTEM?
There are three types of Employment Offers that will be saved in the system which are (1) Pending, (2) Accepted, and (3) Expired.
Pending - All contracts that was created but not yet sent to the candidate and/or accepted by candidates.
Accepted - All contracts that were already accepted by candidates or employees.
Expired - All contracts that were not accepted before the Offer Valid Until date.
Pending - All contracts that was created but not yet sent to the candidate and/or accepted by candidates.
Accepted - All contracts that were already accepted by candidates or employees.
Expired - All contracts that were not accepted before the Offer Valid Until date.
WHAT CAN WE INCLUDE IN THE OTHER CONDITIONS IN THE EMPLOYMENT OFFER?
You can enter any other conditions that are relevant to the employment offer (e.g. salary packaging, induction requirements, or medical checks).
Disclaimer: The information on this page is general guidance material. We recommend that you seek advice that takes into consideration the specific circumstances of your business, employment contracts, and/or other employment conditions.
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