Employment Law

In general, Australian employment law comes from two sources: the common law and a combination of statutory and regulatory frameworks including workplace legislation, the National Employment Standards, and Industrial Instruments like modern awards and enterprise agreements.

The common law

The common law is a main source of employment obligations in Australia. The most well-known source of common law obligations is the employment contract, which applies to all employment relationships in the country. However, any terms in an employment contract that go against the minimum conditions set by statutory and regulatory frameworks or Industrial Instruments are not valid.

While there is no requirement to have a written employment contract by law, it is highly recommended. If there is no written contract, an Australian court may imply certain terms into the relationship between an employee and employer.

A written employment contract should address a variety of issues that may vary based on factors such as: the start of the employment relationship, the type of work, pay, the employee’s role and level of responsibility, how the relationship can be ended, and any specific requirements, such as confidentiality and intellectual property.

It has become increasingly important to have a written and current employment contract in recent years due to changes in the way courts handle disputes over employment rights, obligations, and entitlements. Employers may also provide written workplace policies outlining procedures for employees while working or accessing entitlements. These policies may not create binding obligations for the employer but may serve as a lawful direction for employees.