Contract of Employment
This contract of employment made on the
day of
20[xx]
BETWEEN:
The Employer specified in item 1 of the Schedule; and
The Employee specified in item 2 of the Schedule,
WHEREAS:
A. The Employer has a position available on a [insert full time / part time] basis to undertake the
duties set out in Annexure 1 (“the position”).
B. The Employee and the Employer have agreed that the employee should undertake the position
and the parties wish to record the terms of the employment on the terms and conditions set out
herein.
THE PARTIES AGREE as follows:
1.
Commencement
The Employee will commence employment with the Employer on [insert date].
2.
3.
Position, duties and reporting lines
(a)
Subject to clauses 2(b) and 2(c), the Employee will be employed by the Employer in the
position of [insert title of position]. The Employee's position will involve the duties,
responsibilities and obligations as set out in Annexure 1:
(b)
The Employee will also perform such other duties as the Employer may reasonably
allocate to the Employee from time to time.
(c)
Subject to clause 2(d), the Employee will report to the person holding the position of
[insert position of employee’s supervising manager] or another person nominated by the
Employer from time to time.
(d)
The Employer reserves the right to change the Employee's position, duties,
responsibilities and reporting lines as it sees fit from time to time.
(e)
This contract is subject to the National Employment Standards (NES) established
pursuant to the Fair Work Act 2009 (Cth) as described in the Fair Work Information
Statement set out at Annexure 2.
(f)
The Employee will comply with the Code of Conduct for Victorian Public Sector
Employees as set out at Annexure 3.
Hours of work
(a)
The Employee's ordinary hours of work are [insert no. hours per week/fortnight/month]
comprised of starting work at [insert *8.30 am until *5.00pm on *Monday to Friday] except
on a public holiday. [*delete and or amend above as required].
(b)
In addition, the Employee may be required or requested to work such additional hours as
are reasonably necessary to complete the Employee's duties depending on the business
requirements of the cemetery including a requirement to work on weekends and public
holidays.
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(c)
4.
5.
6.
If for any reason the Employee is unable to work additional hours when required or
requested to do so, the Employee must inform the Employer as soon as is reasonably
possible.
Remuneration
(a)
The Employee will be paid remuneration at the rate(s) set out in item 3 of the Schedule.
(b)
In the case of the employee working overtime, on weekends, or on public holidays the
employer agrees to pay such further remuneration as it is legally obliged to pay under the
provisions of the Fair Work Act 2009 (Cth) or any binding award.
(c)
The Employer will review the Employee's remuneration annually and will adjust it in
accordance with the Employer's policy of annual review based on performance,
productivity and such other matters as the Employer will in its absolute discretion
consider relevant.
(d)
The Employer hopes to provide the Employee with remuneration that is competitive with
market rates. The Employee's remuneration is in excess of or equal too all entitlements
under any award, workplace agreement or similar instrument that may apply to the
Employee's employment. However, if an award, workplace agreement or similar
instrument applies to the Employee's employment, then:
(i)
it applies as a matter of law and does not form part of the Employee's employment
contract; and
(ii)
the Employee's remuneration and, if applicable, any benefits provided to the
Employee are in satisfaction of, and can be used to set-off, all entitlements under
any award, workplace agreement or similar entitlements including minimum wage,
overtime, allowances, loadings and penalties.
Duration
(a)
The Employee's employment will be subject to a probationary period of [insert no.]
months during which time the Employee's employment may be terminated by either party
by giving 1 week's written notice to the other party or, in the case of the Employer, by
providing the Employee with one week's pay in lieu of such notice.
(b)
Subject to clause 5(a), the Employee's engagement will continue indefinitely until
terminated in accordance with clause 18 of this agreement.
Expenses
The employee will be entitled to reimbursement of such expenses as are reasonably and
necessarily incurred by the Employee in performing the Employee's duties under this
agreement.
7.
Superannuation
The Employer will make superannuation contributions in accordance with the Superannuation
Guarantee (Administration) Act 1992 (Cth) and any regulations made pursuant thereto.
8.
Annual leave and long service leave
(a)
The Employee will be entitled to four weeks' annual leave per year of service in
accordance with the Fair Work Act 2009 (Cth) and its replacements from time to time.
Annual leave must be taken at a time or times to be approved by the Employer.
(b)
The Employee will be entitled to long service leave entitlements in accordance with the
long service leave legislation applicable to the Employee's employment.
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9.
Personal/carer's and compassionate leave
(a)
10.
The Employee will be entitled to 10 days' paid personal/carer's leave per year of service if
the Employee:
(i)
cannot attend work due to illness; or
(ii)
needs to care or support an immediate family member or other member of the
Employee's household due to their illness or unexpected emergency.
(b)
Untaken paid personal/carer's leave accumulates from year to year but will not be paid
out on termination.
(c)
In addition, the Employee will be granted 2 days' unpaid carer's leave if the Employee
has exhausted paid personal/carer's leave and the Employee provides proof in
accordance with clause 9(e). Rights under this clause 9(c) arise each time the Employee
needs to care for or support an immediate family member or other member of the
Employee's household due to their illness or unexpected emergency.
(d)
The Employee is entitled to 2 days' paid compassionate leave in the event of the death or
a serious life-threatening illness or injury of an immediate family member or member of
the Employee's household. Untaken compassionate leave does not accumulate from year
to year and will not be paid out if the Employee's employment ends.
(e)
The Employer may require the Employee to provide a medical certificate or, if it is not
reasonably practicable to do so, a statutory declaration for any absence from work for
personal/carer's or compassionate leave.
(f)
The Employee must give the Employer notice of the Employee's taking of
personal/carer's or compassionate leave as soon as practicable. The Employee must
also advise the Employer of the period or expected period of leave.
Parental leave
The Employee will be provided with parental leave in accordance with the Fair Work Act 2009
(Cth).
11.
Community service leave
The Employee may be entitled to community service leave in accordance with the Fair Work Act
2009 (Cth).
12.
Intellectual property
(a)
All intellectual property rights (including, without limitation, all copyright, designs, trade
marks and patents) of any nature in any inventions, designs, works and subject matter
other than works created, developed or generated by the Employee:
(i)
whether alone or with others (including the Employer's other employees,
contractors or agents) for the use of the Employer;
(ii)
without limiting the generality of clause 14(a)(i), during work hours, on the
Employer's premises or using the Employer's resources (including confidential
information);
(iii)
without limiting the generality of clause 14(a)(i) and (ii), in the course of the
Employee's employment,
(together, Intellectual Property) will vest in the Employer upon creation and the
Employee will have no claim to or interest of any nature in such Intellectual Property.
(b)
Without limiting the generality of clause 14(a), the Employee presently assigns to the
Employer all existing and future rights in all Intellectual Property.
(c)
The assignment in clause 14(b) is:
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(d)
(e)
(f)
13.
14.
(i)
without restriction as to use or territory;
(ii)
in perpetuity; and
(iii)
effective without any further payment to the Employee, whether by way of royalty
or otherwise, in consideration for the assignment.
The Employee must do all things:
(i)
necessary to give effect to the assignment in clause 14(b), including executing any
further document required by the Employer; and
(ii)
reasonably requested by the Employer to enable the Employer to assure further
the rights assigned pursuant to clause 14(a) and (b).
To the full extent permitted under Part IX of the Copyright Act 1968 (Cth), the Employee:
(i)
voluntarily and unconditionally consents to all or any acts or omissions by the
Employer, or persons authorised by the Employer, concerning any and all Works
made or to be made by you (whether before or after this consent is given) in the
course of the Employee's employment which would otherwise infringe the
Employee's Moral Rights;
(ii)
waives any and all existing and future Moral Rights in the Works; and
(iii)
acknowledges that the Employee has given this consent:
(A)
voluntarily; and
(B)
without reliance on any statement or representation made by the Company,
or anyone acting on our behalf.
For the purpose of this clause, Works and Moral Rights have the meanings given to
them in the Copyright Act 1968 (Cth).
Disclosure of information
(a)
Other than authorised use during the course of the Employee's employment or otherwise
as required by law, the Employee must not disclose or make known to any person
(including any firm or corporation) either during or after the Employee's employment has
ended, any confidential information that the Employee has been provided, accessed or
acquired during the course of the Employee's employment with the Employer.
(b)
Confidential information includes but is not limited to the following types of information
that the Employee may access, acquire or be provided with during the course of the
Employee's employment with the Employer:
(i)
all products, ideas and concepts concerning the technology of the Employer;
(ii)
all financial information or other business information about the Employer and any
of its divisions, customers, suppliers, products or strategies;
(iii)
terms of contracts or arrangements between the Employer and any other party
(including, without limitation, employees, contractors, agents, customers, suppliers
and directors);
(iv)
research and development information, financial details and information, business
plans, marketing plans and strategies, and any other information about the
Employer, its business, its products and services or plans; and
(v)
[insert other information that is to be kept confidential]
Policies
(a)
The Employee will comply with such other directions of the Employer as set out in any of
its policies as applicable and as varied by the Employer from time to time. The Employee
will take the time to read such policies and re-acquaint himself/herself with those policies
(and their variations) from time to time.
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(b)
15.
Termination
(a)
(b)
16.
The policies of the Employer do not form part of the employment contract.
The Employer may terminate this agreement at any time without prior notice if the
Employee:
(i)
commits any serious or persistent breach of any of the provisions of this
agreement;
(ii)
engages in serious misconduct or wilful neglect in the discharge of the Employee's
duties;
(iii)
becomes bankrupt or makes any arrangement or composition with the Employee's
creditors;
(iv)
becomes of unsound mind;
(v)
is convicted of any criminal offence other than an offence which in the reasonable
opinion of the Employer does not affect the Employee's position as an Employee of
the Employer; or
(vi)
becomes permanently incapacitated by reason of accident or illness and thereby
unable to perform the inherent requirements of the Employee's position.5
Either party may terminate this agreement at any time by giving to the other notice in
writing for a period of not less than the period referred to in item 8 of the Schedule or in
the case of the Employer providing an equivalent payment of wages in lieu of notice.
Relationship of parties
The parties hereby specifically agree that it is intended that this agreement will create the
relationship of Employer and Employee between them and they hereby state that it is not their
intention to create any other relationship and, in particular, the relationship of principal and
contractor or the relationship of partners.
17.
Notices
All notices hereunder by one party may be sent either by personal delivery or by pre-paid mail
to the last known address of the other. Notices sent by mail are deemed to be received when
delivered in the ordinary course of the post.
18.
Governing law
This agreement will be governed by and interpreted in accordance with the laws of the State of
Victoria and both parties submit to the non-exclusive jurisdiction of the courts of Victoria.
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SCHEDULE
1. Employer
The Employer is [name of trust] of [address of trust]; and
2. Employee
The Employee is [name of employee and tax file No.] of [address of employee]
3. Remuneration
The amount of Employee’s Remuneration is: $[xxx] per *annum/*month/*week *delete as appropriate
4. Period of Notice
.......................................................
.......................................................
Signed by employer
Signed by employee
Date: ______________________
Date: ______________________
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ANNEXURE 1
Employment Duties
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ANNEXURE 2
Fair Work Information
Statement
From 1 January 2010, this Fair Work Information Statement is to be provided to all new employees by their employer
as soon as possible after the commencement of employment. The Statement provides basic information on matters
that will affect your employment. If you require further information, you can contact the Fair Work Infoline on 13 13
94 or visit www.fairwork.gov.au.
► The National Employment Standards
The Fair Work Act 2009 provides you with a safety net of minimum terms and conditions of employment through
the National Employment Standards (NES).
There are 10 minimum workplace entitlements in the NES:
1.
A maximum standard working week of 38 hours for full-time employees, plus ‘reasonable’ additional
hours.
2.
A right to request flexible working arrangements.
3.
Parental and adoption leave of 12 months (unpaid), with a right to request an additional 12 months.
4.
Four weeks paid annual leave each year (pro rata).
5.
Ten days paid personal/carer’s leave each year (pro rata), two days paid compassionate leave for each
permissible occasion, and two days unpaid carer’s leave for each permissible occasion.
6.
Community service leave for jury service or activities dealing with certain emergencies or natural
disasters. This leave is unpaid except for jury service.
7.
Long service leave.
8.
Public holidays and the entitlement to be paid for ordinary hours on those days.
9.
Notice of termination and redundancy pay.
10.
The right for new employees to receive the Fair Work Information Statement.
A complete copy of the NES can be accessed at www.fairwork.gov.au. Please note that some conditions or
limitations may apply to your entitlement to the NES. For instance, there are some exclusions for casual
employees.
If you work for an employer who sells or transfers their business to a new owner, some of your NES entitlements
may carry over to the new employer. Some NES entitlements which may carry over include personal/carer’s
leave, parental leave, and your right to request flexible working arrangements.
► Right to request flexible working arrangements
Requests for flexible working arrangements form part of the NES. You may request a change in your working
arrangements, including changes in hours, patterns or location of work from your employer if you require flexibility
because you:

are the parent, or have responsibility for the care, of a child who is of school age or younger

are a carer (within the meaning of the Carer Recognition Act 2010)

have a disability

are 55 or older

are experiencing violence from a member of your family or

provide care or support to a member of your immediate family or household, who requires care or support
because they are experiencing violence from their family.
If you are a parent of a child or have responsibility for the care of a child and are returning to work after taking
parental or adoption leave you may request to return to work on a part-time basis to help you care for the child.
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► Modern awards
In addition to the NES, you may be covered by a modern award. These awards cover an industry or occupation
and provide additional enforceable minimum employment standards. There is also a Miscellaneous Award that
may cover employees who are not covered by any other modern award.
Modern awards may contain terms about minimum wages, penalty rates, types of employment, flexible working
arrangements, hours of work, rest breaks, classifications, allowances, leave and leave loading, superannuation,
and procedures for consultation, representation, and dispute settlement. They may also contain terms about
industry specific redundancy entitlements.
If you are a manager or a high income employee, the modern award that covers your industry or occupation may
not apply to you. For example, where your employer guarantees in writing that you will earn more than the high
income threshold, currently set at $129, 300 per annum and indexed annually, a modern award will not apply, but
the NES will.
Transitional arrangements to introduce the modern award system may affect your coverage or entitlements under
a modern award.
► Agreement making
You may be involved in an enterprise bargaining process where your employer, you or your representative (such
as a union or other bargaining representative) negotiate for an enterprise agreement. Once approved by the Fair
Work Commission, an enterprise agreement is enforceable and provides for changes in the terms and conditions
of employment that apply at your workplace.
There are specific rules relating to the enterprise bargaining process. These rules are about negotiation, voting,
matters that can and cannot be included in an enterprise agreement, and how the agreement can be approved by
the Fair Work Commission.
You and your employer have the right to be represented by a bargaining representative and must bargain in good
faith when negotiating an enterprise agreement. There are also strict rules for taking industrial action. For
information about making, varying, or terminating enterprise agreements visit the Fair Work Commission website,
www.fwc.gov.au.
► Individual flexibility arrangements
Your modern award or enterprise agreement must include a flexibility term. This term allows you and your
employer to agree to an Individual Flexibility Arrangement (IFA), which varies the effect of certain terms of your
modern award or enterprise agreement. IFAs are designed to meet the needs of both you and your employer.
You cannot be forced to make an IFA, however, if you choose to make an IFA, you must be better off overall.
IFAs are to be in writing, and if you are under 18 years of age, your IFA must also be signed by your parent or
guardian.
► Freedom of association and workplace rights (general protections)
The law not only provides you with rights, it ensures you can enforce them. It is unlawful for your employer to take
adverse action against you because you have a workplace right. Adverse action could include dismissing you,
refusing to employ you, negatively altering your position, or treating you differently for discriminatory reasons.
Some of your workplace rights include the right to freedom of association (including the right to become or not to
become a member of a union), and the right to be free from unlawful discrimination, undue influence and
pressure.
If you have experienced adverse action by your employer, you can seek assistance from the Fair Work
Ombudsman or the Fair Work Commission (applications relating to general protections where you have been
dismissed must be lodged with the Fair Work Commission within 21 days).
► Termination of employment
Termination of employment can occur for a number of reasons, including redundancy, resignation and dismissal.
When your employment relationship ends, you are entitled to receive any outstanding employment entitlements. This
may include outstanding wages, payment in lieu of notice, payment for accrued annual leave and long service leave,
and any applicable redundancy payments.
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Your employer should not dismiss you in a manner that is ‘harsh, unjust or unreasonable’. If this occurs, this may
constitute unfair dismissal and you may be eligible to make an application to the Fair Work Commission for
assistance. It is important to note that applications must be lodged within 21 days of dismissal. Special provisions
apply to small businesses, including the Small Business Fair Dismissal Code. For further information on this code,
please visit www.fairwork.gov.au.
► Right of entry
Right of entry refers to the rights and obligations of permit holders (generally a union official) to enter work
premises. A permit holder must have a valid and current entry permit from the Fair Work Commission and,
generally, must provide 24 hours’ notice of their intention to enter the premises. Entry may be for discussion
purposes, or to investigate suspected contraventions of workplace laws that affect a member of the permit
holder’s organisation or occupational health and safety matters. A permit holder can inspect or copy certain
documents, however, strict privacy restrictions apply to the permit holder, their organisation, and your employer.
► The Fair Work Ombudsman and the Fair Work Commission
The Fair Work Ombudsman is an independent statutory agency created under the Fair Work Act 2009, and is
responsible for promoting harmonious, productive and cooperative Australian workplaces. The Fair Work
Ombudsman educates employers and employees about workplace rights and obligations to ensure compliance
with workplace laws. Where appropriate, the Fair Work Ombudsman will commence proceedings against
employers, employees, and/or their representatives who breach workplace laws.
If you require further information from the Fair Work Ombudsman, you can contact the Fair Work Infoline on 13
13 94 or visit www.fairwork.gov.au.
The Fair Work Commission is the national workplace relations tribunal established under the Fair Work Act
2009. The Fair Work Commission is an independent body with the authority to carry out a range of functions
relating to the safety net of minimum wages and employment conditions, enterprise bargaining, industrial action,
dispute resolution, termination of employment, and other workplace matters. If you require further information, you
can visit the Fair Work Commission website, www.fwc.gov.au.
The Fair Work Information Statement is prepared and published by the Fair Work Ombudsman in accordance
with section 124 of the Fair Work Act 2009.
© Copyright Fair Work Ombudsman. Last updated: July 2013.
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ANNEXURE 3
Code of Conduct for Victorian Public Sector Employees
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