Common law employment contracts

When you agree to engage an employee, a common law employment contract is made regardless of whether you have written it down. Awards and State and Federal industrial laws will almost certainly apply and you must comply with their terms.

All employers should prepare a written common law employment contract for all employees so that everyone is clear about the various entitlements and conditions of work. Find an employment contract for your state that you can use to draft a contract to take to your legal adviser.

The common law employment contract must not contain any terms or conditions for work which are inconsistent with or less favourable to the employee than the relevant award or industrial law. If it does, these terms and conditions will not be enforceable.

Read the Basic Principles of Contract Law for Employers for more detailed information on creating contracts.

No written agreement?

Many farm employees have no written employment agreement. However, there will still be an enforceable common law employment contract based on the verbal agreement made when the employee started work, the relevant award, and the state or federal industrial laws.

Employees can take action for non-payment of award or other legal entitlements up to 6 years later and employers can be prosecuted for breaches of the award or state and federal industrial laws.

Remember, if there is disagreement about non-payment of agreed over award payments, it will be more difficult to prove what was actually agreed (sometimes years later) if there was no written agreement.

Pastoral Award 2010 – requirements for written employment agreements

The Pastoral Award 2010 specifically requires employers to give full-time employees a written statement setting out their classification, applicable pay and terms of engagement.

Part-time employees and the employer must agree in writing on the regular pattern of work specifying the hours to be worked each day, the days of the week when the employee will work and the daily starting and finishing times.

Casual employees must be told that they are employed as a casual employee, the identity of the employer, their hours of work, classification level and pay rate. Employers are not required under the Pastoral Award 2010 to provide a written statement to casual employees but this is advisable.

It is a good idea to use your state farming organisation or legal adviser to help you write an appropriate and effective contract that will provide a sound guide to dealing with your employees.

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