Do you have questions about your employment contract?

Get a lawyer who has helped numerous people to resolve employment contract issues across Queensland.

Do you have questions about your employment contract?

Get a lawyer who has helped numerous people to resolve employment contract issues across Queensland.

How this firm can protect your interests

How this firm can protect your interests

Andrew Anderson, Legal Director, is an award-winning lawyer with a passion for employment law. He is independently recommended as being among the leading corporate crime, white-collar crime and regulatory investigations lawyers in Australia (Doyles Guide, 2020).
Having successfully represented litigants in the High Court of Australia, Queensland Court of Appeal, Royal Commissions, Fair Work Commission and multiple other courts dealing with trials and other hearings, Andrew Anderson understands how to succeed in complex and difficult cases.
Andrew Anderson has worked as a Principal Crown Prosecutor in Queensland and barrister in private practice at 8 Petrie Terrace Chambers in Brisbane. His depth of courtroom advocacy experience ranges from simple cases right through to complex trials and appeals.
Anderson Legal is a law firm that is dedicated to the best ideals of the legal profession. Seeking to exceed client expectations and fighting for justice is an everyday pursuit.

Learn more about employment contracts

1. Specific employment contract issues

Disputes often occur with employment contracts because they may be silent about issues about which an employer and employee may disagree at some point. It could be about disciplinary processes, redundancy decisions, or simply the true nature of the employment relationship. For anybody dealing with a potential dispute about employment issues, it is critical to get informed about your rights, responsibilities and legal options.

Breach of Contract Claims

A breach of an employment contract may arise due to express or implied terms and conditions. Claims are often made when other, simpler claims (such as unfair dismissal claims) are unavailable due to the nature of the contract.

Some employees, whose income is above the ‘high-income threshold’, sometimes cannot resort to unfair dismissal claims. However, there may be scope to pursue a breach of contract claim seeking damages for loss of income, as well as other damages such as for pain and suffering. Seeking orders to prevent the breach of an employment contract can be complicated by the nature of the employment relationship. 

End of Contract Negotiations

Whether initiated by an employer or an employee, end of contract negotiations allow for an end to the employment relationship on commercial terms agreed by both parties. They often occur confidentially and as part of a dispute resolution process. Due to the commercial and reputational sensitivity around such agreements, they often contain confidentiality, non-disparagement and indemnification clauses.

Sham Contracts

In Australia, employees often have rights and entitlements that are not part of the working arrangements of independent contractors. Sham contracts involve a business framing a worker as a contractor when they are, in truth, an employee.

Sham contracting arrangements have been the subject of scrutiny and action by the Fair Work Ombudsman. Penalties can be imposed by courts if an individual or corporation is found to have engaged in sham contracting. Individuals who are concerned about whether they are an employee despite being told they are an independent contractor should get informed about their options to challenge their classification.

Variations to Employment Duties

Whether an employer may vary the duties of an employee under an employment contract will depend on a range of factors, such as any relevant industrial award, enterprise agreement, or the terms of the individual employment agreement.

While an employer and employee may agree to a variation in employment duties, which can have the legal effect of forming a new contract, variations without agreement can be more problematic. Often, employment contracts will expressly allow for variations to occur to employment duties, however, such clauses do not necessarily prevent employees from taking action against unfair or unreasonable changes to employment duties.

Wage Underpayment Claims

If you believe you have underpaid workers or have been underpaid yourself, it is important to understand the rights and responsibilities you may have to correct the error. Some jurisdictions, including Queensland, have now criminalised ‘wage theft’.

Wage underpayments and associated superannuation contribution arrears can be pursued by regulatory bodies in Australia, such as the Fair Work Ombudsman or the Australia Taxation Office. It is possible for civil penalties and, in some cases, criminal charges to be pursued against employers who have underpaid workers. If you face a wage underpayment claim issue, it is crucial to understand your legal options.

2. Common employment contract issues

Below are a number of common issues that people confront when dealing with employment contract issues. While the information about each issue has been created to help people seeking to learn more about common issues relating to employment contracts, it cannot – and is not meant to – substitute legal consultation. To get tailored advice about an issue that may be raised in a specific case, contact Anderson Legal.

Employees vs Independent Contractors

Whereas an independent contractor works themsleves, an employee works in someone else’s business. The ‘gig economy’ has creates significant challenges in distnguishing between who is an employee and who is an indepdent contractor. It has exposed a number of sham contracting arrangments and required courts to consider the legal framework for deciding whcih category someone falls into – employee or contractor.

Express vs Implied Contractual Terms

While it is common for employment contracts to be in writing and set out a number of express terms, it is also common for contracts to be silent about a range of issues. In such situations, the law may find certain terms to be implied.

While sections 124 and 125 of the Fair Work Act 2009 (Cth) require certain information to be provided to employees, the law allows significant discretion as to what may be stated in an employment contract. In absence of express terms, it may be possible to imply terms to give business efficacy to a contract, or because of custom, or for some other reason or circumstance specific to the contract.

National Employment Standards

In Australia, there are 11 minimum employment entitlements that must be provided to all employees. A person cannot be employed for less than the minimum wage or on conditions that are less than the National Employment Standards (NES).

The National Employment Standards (NES) cover a range of issues, including maximum weekly hours, requests for flexible working arrangements, conversion from casual to permanent employment, parental and other leave entitlements, public holidays, termination notice and redundancy pay. Failure by employers to ensure compliance with the National Employment Standards can have significant consequences.

Restraint of Trade Clauses

Restraint of trade clauses may be valid and enforceable, depending on the reasons and extent of the restrictions intended to be enforced. A restraint that interferes with free trade to the extent it is contrary to public policy will not be enforceable.

Restraint of trade clauses often involve little consideration by employees in the formation of an employment contract but can assume real significance at the point the employment relationship ends. Understanding the limited protections clauses of this kind are supposed to provide employers can inform both employees and employers what may be a reasonable restraint in the circumstances.

Termination of Employment

The termination of employment in breach of a contract can result in unnecessary reputational and financial harm to employers and employees. Ensuring compliance with contractual terms can be crucial in avoiding contractual disputes.

The termination of employment is often the most contentious point of an employment relationship between an employer and an employee. The validity of a dismissal decision may be challenged based on evidence relating to before, during or after the termination. In cases where termination is unfair, unjust or unreasonable, an employee may successfully pursue reinstatement and damages.

3. Possible alternatives to breach of contract claims

If you are questioning whether your employment contract has been breached, or have been accused of breaching an employment contract, getting early advice about your legal options can be crucial to protecting your rights and advancing your interests.

Discrimination Claims

If you are subject to discrimination in the workplace, there are a number of possible claims that may be available to litigate, including through human rights and anti-discrimination commissions as well as the Fair Work Commission.

Increasingly, instead of seeking to deal with discrimination claims simply through the Fair Work Commission, individuals are seeing the benefits of pursuing claims through human rights and anti-discrimination commissions across Australia. Additionally, people who suffer psychological or psychiatric injuries may also seek to pursue workers’ compensation claims among other types of claims that may be available.

General Protections Claims (Adverse Action)

In Australia, there are certain protections (called general protections) employees have that are designed to prevent an employer from taking adverse action over – such as disciplining or dismissing a worker because they exercise a workplace right.

A general protections claim allows a worker to bring a claim against their employer for taking actions that cause detriment (adverse action) because they exercise a workplace right or for some other protected reason. It is possible for employees to apply for injunctions to stop the decisions or actions taking effect, as well as to pursue compensation and other remedies for the resulting harm or damage caused by the adverse action.

Mutual Agreements and Negotiated Separation

In the context of a dispute about possible dismissal, or following the termination of employment, it may be possible to resolve the matter through mutual agreements and a negotiated settlement. This can avoid lengthy and contested litigation.

Whether initiated by an employer or an employee, mutual separation agreements need to be carefully negotiated. It is crucial to identify the risks and benefits of any litigation versus resolution of a dispute by a mutual agreement and negotiated settlement. Such agreements often contain confidentiality, non-disparagement and waiver of all claims clauses, which can significantly impact the rights and interests of all parties.

Unfair Dismissal Claims

Following a workplace investigation that results in an employer deciding to dismiss an employee, it is often open for that employee to dispute the dismissal by filing an unfair dismissal claim in the Fair Work Commission.

Successful unfair dismissal claims may result in reinstatement and compensation being ordered by the Fair Work Commission. There are strict deadlines that apply to unfair dismissal claims so it is important that anybody considering lodging an unfair dismissal claim gets the advice and guidance needed to successfully navigate the dispute. Anderson Legal provides expert advice and guidance with respect to unfair dismissal claims.

Unlawful Termination Claims

Under the Fair Work Act 2009 (Cth), in addition to the unfair dismissals processes available to employees who are dismissed from their job, it is also possible to pursue unlawful termination claims against employers.

It is unlawful for an employer to terminate an employees employment due to (1) a temporary absence because of illness or injury; (2) trade union membership; (3) filing complaints; (4) discrimination; and, (5) absence for parental leave or activities associated with emergency management. It is important to get advice about whether an unfair dismissal, general protections or unlawful termination claim is best for a specific situation.

Do you need personalised legal advice or representation about an issue involving an employment contract?

If you are facing an employment contract dispute or related matter, obtaining early and authoritative advice may be essential to protecting your rights and legal interests. Andrew Anderson has experience in assisting individuals to deal with issues arising with respect to their employment contract and related entitlements.

If you need to contact Anderson Legal, you can call the firm on (07) 3505 7070. Alternatively, you can complete our form and we will try to contact you.

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