The Employment Contract

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Common Questions

Our fee policy in employment law matters

The terms on which we act in employment matters varies depending on the circumstances of each matter.  We act in such matters on normal fee basis, fixed fee, and on occasions, no win, no fee. (as well as a combination of the above).  As part of the process of providing initial advice as to options we will have a conversation with you about our terms.  Find out more…

What is the difference between an independent contractor and an employee?

The difference between an employee and an independent contractor is complex, but can be crucial.  Minimum rates of pay, and many protections containing in Modern Awards and  the Fair Work Act (including unfair dismissal protections) apply only to employees.  Taxation, superannuation and other payments may apply operate different on employees and contractors.

Courts make the assessment of whether a person if an employee or contractor by reference to a variety of factors such as:

  • Degree of control over how work is performed – Employees are subject to higher level of control than contractors.
  • Method of payment – employees are generally paid by reference to the hours they work, while contractors are often paid by reference to the tasks they perform.
  • Hours of work – employees are more likely to work defined hours while contractors are more likely to have a discretion as to when they work.
  • Tools and equipment – employees generally do not supply their own tools or equipment.
  • Tax – Contractors normally have an ABN and charge GST, while employees have PAYG tax deducted.
  • Whether the work can be delegated or must be done personally.  A employee is required to do the work themselves, while a contractor can often have someone else perform the work.
  • How the parties characterize the relationship – while not conclusive, whether the parties describe the relationship as being contrcator or employee is a consideration.

Please contact us for more ifnormation.

What does adverse action mean?

Adverse action is a term used in the Fair Work Act.  Where adverse acted is taken by an employer or principal contractor for a prohibited reason, it is unlawful.

Adverse action includes the termination of employment, and any other action that causes a person determinant  in their work.

There are three classes of prohibited reasons: around the exercise of workplace rights, around the exercise of industrial rights (such as being a member of a union), and because of a characteristic a person has (such as being a women).

Unlike unfair dismissal claims, adverse action claims do not require a person to have been employed for more than 6 months, or to earn less than the high income threshold.

What is an employment contract?

Employment is the contractual relationship between  an employee and an employer.  By defintion, all employees have a contract of employment.

The contract does not need to be in writing, but can consist of oral terms, or implied terms, as well as written ones.

Not all terms and conditions that apply to employment will be reflected in the contract of employment.  Terms of modern awards, enterprise agreements, and various statutes may also apply.  These terms are not normally contractual.  However, any other term (such as for example, an rate of pay in excess of the Award), will be contractual in nature.

One of the tasks an employment lawyer performs is working out the terms of the contract of employment.

Are legal fees tax deductable?

Legal fees are tax deductible in matters related to employment in some, but not all cases.

The broad proposition is that fees paid in connection with the performance or maintenance of employment (such as for example underpayment claims) are deductible, while fees paid in connection with allegations about the termination of employment are not.  You should obtain specific advice on whether your legal fees are deductible.

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Fee policy

The terms on which we act in employment and industrial matters varies depending on the circumstances of each matter.

We do not generally act on a no win, no fee basis in employment law matters.

We act in such matters on variety of terms including (most commonly) on the basis of an hourly rate basis or a fixed fee.

We are committed, where possible, to ensuring that legal costs do not prevent people from enforcing their rights.  As part of the process of providing initial advice as to options we will have a conversation with you about our terms.  Find out more…

Employment & Industrial law articles

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