Employment Agreement - Template, Sample Form Pro · AU-law
✓ Valid in Australia · drafted to comply with local law
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EMPLOYMENT AGREEMENT
This Employment Agreement ("this Agreement") is made on ________.
BETWEEN THE EMPLOYER:
________ (ABN ________)
of the following address ("Employer's Address"):
________
AND THE EMPLOYEE:
________
of the following address ("Employee's Address"):
________
BACKGROUND
The Employer agrees to employ the Employee, and the Employee agrees to be employed by the Employer, on the terms and conditions set out in this Agreement. This Agreement is to be read together with, and is subject to, the National Employment Standards in the Fair Work Act 2009 (Cth) ("the NES") and any applicable modern award, enterprise agreement or other industrial instrument.
(1) INTERPRETATION
In this Agreement, unless the context otherwise requires, the following rules of interpretation apply:
(2) TYPE OF EMPLOYMENT
The Employee will be employed on a ________ basis.
(3) TERM OF EMPLOYMENT
(a) The Employee will commence employment with the Employer on ________.
(b) The Employee will be employed for an indefinite term, subject to the other terms of this Agreement (including the terms relating to termination).
(4) POSITION
The Employee will be employed in the position of: ________, reporting to ________.
(5) DUTIES
(a) The Employee will be required to perform all tasks and accept all duties and responsibilities reasonably requested by the Employer from time to time ("the Employee's Duties"). In particular, the Employee will have the following duties:
________
(b) The Employer may from time to time make reasonable changes to the position or to the Employee's Duties, provided such changes are reasonable having regard to the Employer's industry and the Employee's position.
(c) The Employer and the Employee may from time to time agree to make changes to the position or to the Employee's Duties.
(d) The Employee agrees to perform the Employee's Duties in accordance with:
(I) this Agreement; and
(II) the lawful and reasonable directions, instructions and requests of the Employer; and
(III) any of the Employer's guidelines, manuals, policies or procedures as they exist from time to time.
(e) The Employee must perform the Employee's Duties in good faith, having regard to the best interests of the Employer, and in a careful, conscientious and professional manner to a standard that can reasonably be expected of a person with the Employee's level of skill, training and experience.
(6) LOCATION OF EMPLOYMENT
The Employee will be required to work from the address shown below, or such other location(s) as the Employer reasonably directs from time to time:
________
(7) REMUNERATION
(a) In consideration for the Employee's performance of the Employee's Duties in accordance with this Agreement, the Employer agrees to pay the Employee ("the Compensation") a gross annual salary of $________ (________).
(b) The Compensation is a gross amount. Applicable PAYG withholding tax and other statutory deductions will be withheld by the Employer in accordance with the relevant laws. The Employee's net salary, after such deductions, will be the actual amount received.
(c) The Compensation will be paid ________, in arrears.
(d) The Compensation will be paid by electronic funds transfer into the following bank account (or such other account as is nominated in writing by the Employee):
________
(e) In addition to the Compensation, the Employer will make superannuation contributions on behalf of the Employee into a complying superannuation fund in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth) and the Superannuation Guarantee Charge Act 1992 (Cth). The Employee may nominate a complying fund of their choice; in the absence of a valid nomination, contributions will be made to the Employee's stapled fund or the Employer's default fund as required by law.
(f) The Employee acknowledges and agrees that the Compensation, superannuation and the Benefits (as described below) constitute the sole compensation to which the Employee is entitled in consideration for the Employee's fulfilment of the Employee's Duties, subject to the Employee's entitlements under the NES and any applicable industrial instrument.
(g) The Employee acknowledges and agrees that if the Employer provides any additional compensation (such as bonuses) beyond the Compensation and Benefits described in this Agreement, such additional compensation will be payable entirely at the Employer's discretion unless otherwise agreed in writing.
(h) The Employee authorises the Employer to make any deductions from the Compensation that are required or authorised by law, or that are authorised in writing by the Employee and are principally for the Employee's benefit, in accordance with section 324 of the Fair Work Act 2009 (Cth).
(i) The Employer may reimburse the Employee for reasonable expenses properly incurred by the Employee in the performance of the Employee's Duties, subject to the production of receipts and compliance with the Employer's expense policies.
(j) The Employee's level of Compensation may be increased at any time at the Employer's discretion, and may be reviewed at any performance review.
(k) Where any applicable modern award or industrial instrument provides for an entitlement greater than that provided under this Agreement, the more beneficial entitlement will apply. The Compensation is intended to compensate the Employee for, and may be set off against, any award entitlements to the extent permitted by law.
(8) BENEFITS
(a) In addition to the Compensation, the Employee will be entitled to the following benefits ("the Benefits"):
________
(b) Other than entitlements which arise under the NES, an applicable industrial instrument or other law, the Benefits are provided to the Employee at the sole discretion of the Employer. The Employer may, in its sole discretion, vary, revoke or terminate any discretionary Benefit at any time, and in such event the Employee will not be entitled to any compensation in lieu of those Benefits.
(9) PROBATION
(a) The Employee's employment is subject to the satisfactory completion of a probationary period of ________ from the commencement date.
(b) During the probationary period, either party may terminate this Agreement by providing the period of written notice (or payment in lieu of that notice) required under the NES, being a minimum of ________.
(10) HOURS OF WORK
(a) The Employee's ordinary hours of work will be ________ hours per week, consistent with the maximum weekly hours under section 62 of the Fair Work Act 2009 (Cth).
(b) The Employee's ordinary hours of work, including breaks, will be:
________
(c) From time to time, after receiving reasonable notice from the Employer, the Employee may be required to work reasonable additional hours in addition to or outside the Employee's ordinary hours ("the Additional Hours"). The Employee will be compensated for the Additional Hours as follows:
________
(d) The Employee may refuse to work additional hours where those hours are unreasonable having regard to the matters set out in section 62 of the Fair Work Act 2009 (Cth).
(11) LEAVE
(a) The Employee is entitled to paid annual leave in accordance with the NES, being ________ per year of continuous service (or such greater amount as may be provided under any applicable industrial instrument).
(b) Subject to the NES, any accrued and untaken annual leave will accumulate from year to year.
(c) The Employee may take annual leave at times agreed between the Employee and the Employer, with the Employer not to unreasonably refuse a request to take accrued annual leave.
(d) On termination of employment, the Employer will pay the Employee for any accrued but untaken annual leave in accordance with the NES.
(e) In addition to annual leave, the Employee is entitled to all other leave provided under the NES and any applicable industrial instrument, including personal/carer's leave, compassionate leave, parental leave, community service leave, family and domestic violence leave, long service leave under the applicable State or Territory legislation, and paid public holidays.
(12) LEAVE LOADING
The Employer will pay the Employee any annual leave loading payable in accordance with the provisions of any modern award, enterprise agreement or other applicable industrial instrument that governs the Employee's employment. Where no such instrument applies, leave loading will not be payable unless otherwise specified in this Agreement.
(13) NO CONFLICT
The Employee must not, at any time while employed under this Agreement, without the Employer's prior written consent, engage in any employment or other business activity (including working as a contractor, consultant or otherwise, or operating a business in which the Employee owns an interest), whether directly or indirectly, which in the Employer's reasonable determination conflicts with the best interests of the Employer.
(14) RESTRAINT
(a) The Employee agrees that, for the Time Period (defined below) after termination of the Employee's employment, and within the Geographical Area (defined below), the Employee will not, whether directly or indirectly, and whether as employee, partner, sole trader, manager, director, adviser, agent, representative, affiliate, consultant, shareholder, unit holder, trustee, contractor or otherwise, do any of the following:
(I) engage in a business which is the same as, substantially similar to, or in competition with the Employer's business; or
(II) solicit, entice away, hire or attempt to hire any employee or contractor of the Employer with whom the Employee had material dealings; or
(III) solicit, canvass or entice away any customer or client of the Employer with whom the Employee had material dealings.
(b) For the purposes of this clause, "the Time Period" means, from the date the Employee ceases employment, whichever of the following the relevant court considers reasonable and enforceable:
(I) twelve months;
(II) six months;
(III) three months;
(IV) two months;
(V) one month;
each of which constitutes a separate and independent provision severable from the others. If a court of competent jurisdiction determines that any such provision is unenforceable in whole or in part, the enforceability of the remainder of that provision or of any other provision will not be affected.
(c) For the purposes of this clause, "the Geographical Area" means, measured from the Employer's Address, whichever of the following the relevant court considers reasonable and enforceable:
(I) ten kilometres;
(II) five kilometres;
(III) four kilometres;
(IV) three kilometres;
(V) two kilometres;
(VI) one kilometre;
each of which constitutes a separate and independent provision severable from the others. If a court of competent jurisdiction determines that any such provision is unenforceable in whole or in part, the enforceability of the remainder of that provision or of any other provision will not be affected.
(d) The Employee acknowledges that the restraints in this clause are reasonable and necessary to protect the legitimate business interests of the Employer, and go no further than is reasonably necessary for that purpose.
(15) CONFIDENTIALITY
(a) The Employee acknowledges and agrees that during the Employee's employment the Employee may have access to information that is confidential and/or commercially valuable to the Employer ("Confidential Information"), which may include but is not limited to:
(I) information of any nature relating to the business activities, practices and finances of the Employer;
(II) any evaluation material, design work, technologies, technological ideas or strategies, strategic plans and ideas, marketing strategies, innovations, creative plans, concepts, customer and supplier lists and any other plans or ideas developed by or on behalf of, or used by, the Employer;
(III) any information derived from any information falling within this definition; and
(IV) any copy of any Confidential Information;
but does not include information which:
(I) was lawfully known to or in the possession of the Employee before it was provided by the Employer, otherwise than as a result of any breach of confidentiality obligation;
(II) is, or becomes, publicly available through no fault of the Employee;
(III) is provided to the Employee without restriction by a third party who did not breach any confidentiality obligation in doing so;
(IV) is provided to the Employee by the Employer and is marked "Non-Confidential"; or
(V) is required by law or regulation to be disclosed, but only to the minimum extent necessary and, where lawful and practicable, after first consulting the Employer.
(b) The Employee must keep the Confidential Information confidential and secret.
(c) The Employee must use the Confidential Information only for the purpose of performing the Employee's obligations under this Agreement.
(d) If there is any doubt as to whether information constitutes Confidential Information, the Employee should treat it as Confidential Information until the Employer confirms in writing that it is not.
(e) This clause will survive termination or expiration of this Agreement.
(16) INTELLECTUAL PROPERTY
(a) In connection with the Employee's performance of the Employee's Duties, the Employee may generate, create, contribute to, write or produce intellectual property ("Created IP").
(b) For the purposes of this Agreement, "Created IP" includes but is not limited to:
(I) information, ideas, innovations, developments, improvements, inventions, discoveries, plans, reports, drawings, specifications, advice, analyses, designs, methodologies, code, artwork or any other intellectual property;
(II) intellectual property generated directly, indirectly, independently or in cooperation with any other person;
(III) intellectual property resulting in any way from work performed for or on behalf of the Employer;
(IV) intellectual property resulting from the use of the Employer's resources or assets; and
(V) intellectual property relating in any other way to the Employer's business.
(c) Unless otherwise agreed in writing, all intellectual property rights in any Created IP vest in and belong to the Employer, and the Employee hereby assigns to the Employer (and, where applicable, its successors and assigns) all right, title and interest (including future rights) the Employee has or may have in the Created IP.
(d) Unless otherwise agreed in writing, all intellectual property rights in any intellectual property provided by the Employer to the Employee belong to the Employer.
(e) To the extent permitted by the Copyright Act 1968 (Cth), the Employee consents to all acts or omissions by the Employer (and persons authorised by it) that would otherwise infringe the Employee's moral rights in the Created IP.
(f) The Employee agrees, both during and after employment, to:
(I) cooperate with the Employer in obtaining and maintaining any copyrights, patents, trade marks or other intellectual property rights in the Created IP, including by executing any documents reasonably required; and
(II) cooperate with the Employer in any defence or prosecution of the Employer's intellectual property rights in the Created IP.
(g) This clause will survive the termination or expiration of this Agreement.
(17) WORKPLACE HEALTH AND SAFETY
(a) The Employer will, so far as is reasonably practicable, provide and maintain a working environment that is safe and without risks to the health, safety and welfare of the Employee, in accordance with all applicable work health and safety laws, including the relevant Work Health and Safety Act in the applicable jurisdiction.
(b) The Employee must, while at work, take reasonable care for the Employee's own health and safety and for the health and safety of others who may be affected by the Employee's acts or omissions.
(c) The Employee must comply with any reasonable instruction, policy or procedure relating to work health and safety given by the Employer from time to time, and must cooperate with the Employer in relation to any action taken to comply with its obligations under applicable work health and safety laws.
(18) POLICIES AND PROCEDURES
(a) The Employee agrees to comply with all of the Employer's guidelines, manuals, policies and procedures as they exist from time to time.
(b) The Employee acknowledges and agrees that the Employer's guidelines, manuals, policies and procedures do not form part of this Agreement, and that the Employer may add to, vary, replace or revoke any of them at any time in its sole discretion.
(c) In the event of any inconsistency between this Agreement and any of the Employer's guidelines, manuals, policies or procedures, the terms of this Agreement prevail to the extent of the inconsistency.
(19) PERFORMANCE REVIEWS
The Employee will be subject to performance reviews annually, or at such other intervals as may be agreed between the parties.
(20) TERMINATION
(a) After the probationary period, either party may terminate this Agreement by providing written notice (or, in the case of the Employer, payment in lieu of notice) of not less than the minimum period required under section 117 of the Fair Work Act 2009 (Cth) and any applicable industrial instrument, being ________.
(c) Both parties acknowledge that, where either party gives notice of termination, both parties must continue to perform their obligations under this Agreement in good faith until the end of the notice period. In particular:
(I) the Employee must comply with the Employer's reasonable requests in relation to the termination of employment, including assisting with the training of replacement staff and the handover and finalisation of the Employee's work; and
(II) the Employer must not, without the Employee's consent, vary this Agreement or reduce the Compensation during the notice period.
(d) Nothing in this clause excludes or limits the Employee's rights under the unfair dismissal or general protections provisions of the Fair Work Act 2009 (Cth).
(21) RETURN OF PROPERTY
On the termination or expiration of this Agreement, the Employee must promptly return to the Employer all property, documentation, records, Confidential Information and Created IP belonging to the Employer that is in the Employee's possession or control.
(22) BREACH AND REMEDIES
(a) The Employee acknowledges and agrees that, in the event of an actual or threatened breach of this Agreement by the Employee, damages alone may not be an adequate remedy and the Employer may seek injunctive relief to prevent or limit any such breach, in addition to any other rights or remedies available to it.
(b) Any injunctive relief described in sub-clause (a) is available to the Employer in addition to, and regardless of whether it exercises, any other right or remedy.
(c) Any such injunctive relief may restrain the Employee personally, or any person associated with the Employee whose conduct, if not restrained, may cause harm or loss to the Employer or its business.
(23) ENTIRE AGREEMENT
(a) This Agreement represents the entire agreement between the parties in relation to its subject matter and supersedes all prior negotiations, representations and agreements. The parties confirm that no warranties, representations, conditions or collateral agreements affect this Agreement except as expressly set out in writing in this Agreement.
(b) For clarity, any other written agreements entered into between the parties, such as a separate confidentiality agreement, may apply in addition to this Agreement.
(24) AMENDMENTS
Any amendment or modification to this Agreement, and any additional obligation imposed on either party in relation to this Agreement, will not be binding unless in writing and signed by each party (either personally or by an authorised representative).
(25) PRIVACY
(a) The Employee acknowledges that the Employer will collect, hold, use and disclose the Employee's personal information for purposes connected with the Employee's employment, in accordance with the Privacy Act 1988 (Cth), the Australian Privacy Principles and the Employer's privacy policy.
(b) The Employee consents to the collection, use and disclosure of the Employee's personal information for those purposes, including disclosure to superannuation funds, payroll providers, government agencies and other third parties as reasonably necessary.
(26) NOTICES
(a) Any notice, demand, request or other correspondence in relation to this Agreement which is required or permitted to be given in writing will be deemed validly given to the Employee if delivered by hand, by courier, or by post with signature on delivery, to the following address:
________
(b) Any notice, demand, request or other correspondence in relation to this Agreement which is required or permitted to be given in writing will be deemed validly given to the Employer if delivered by hand, by courier, or by post with signature on delivery, to the following address:
________
(c) Either party ("the Nominating Party") may nominate another address ("the New Address") by notifying the other party in writing. After such nomination, any notice will be deemed validly given if delivered to the Nominating Party at the New Address.
(27) WAIVER
(a) The waiver by either party of any right or remedy in relation to a breach, default, delay or omission by the other party will not be construed as a waiver of any subsequent breach of the same or any other provision of this Agreement.
(b) The failure or delay by either party in exercising any right or remedy under this Agreement will not constitute a waiver of that right or remedy.
(c) Any rights or remedies provided in this Agreement are cumulative and in addition to any rights or remedies provided by law.
(28) GOVERNING LAW
(a) This Agreement is governed by the laws of ________ and the Commonwealth of Australia, and each party submits to the non-exclusive jurisdiction of the courts of ________ and the courts competent to hear appeals from them.
(b) Nothing in this Agreement limits the operation of any applicable laws, awards or enterprise agreements which apply to this Agreement and which cannot be excluded, modified or restricted by agreement between the parties.
(29) BINDING AGREEMENT
This Agreement is binding upon and enures for the benefit of the parties and their respective successors and permitted assigns.
(30) SEVERABILITY
If any clause or sub-clause of this Agreement is held to be invalid or unenforceable, it is to be read down or severed to the extent necessary, and the remaining clauses and sub-clauses will continue in full force and effect to the maximum extent possible.
(31) SURVIVAL OF OBLIGATIONS
On the termination or expiration of this Agreement, any provisions which by their nature would be expected to survive termination or expiration will remain in full force and effect, including any provisions which expressly state that they survive.
(32) HEADINGS
Headings are for convenience only and do not affect the interpretation of this Agreement. A reference to a clause is a reference to a clause of this Agreement.
(33) COUNTERPARTS
This Agreement may be executed in any number of counterparts (including electronic counterparts), each of which when executed and delivered is taken to be an original, and all counterparts together constitute one and the same instrument.
EXECUTED AS AN AGREEMENT ON ________
Signed for and on behalf of ________ by its authorised representative:
___________________________________
Signature of authorised representative
____________________________________
Print name: ________
____________________________________
Position: ________
In the presence of:
____________________________________
Witness Signature
____________________________________
Witness Name: ________
____________________________________
Witness Occupation: ________
____________________________________
Witness Address: ________
Signed by the Employee, ________:
____________________________________
________
In the presence of:
____________________________________
Witness Signature
____________________________________
Witness Name: ________
____________________________________
Witness Occupation: ________
____________________________________
Witness Address: ________
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