This is an extract of our Forming A Contract Of Employment document, which we sell as part of our Employment Law Notes collection written by the top tier of Monash University students.
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Topic 2: Forming a Contract of Employment
? Types of employment contracts o Casual vs continuing
? Casual under industrial standards: Casual is anyone who is specifically engaged and paid as a casual. So long as they are 'labelled' as a casual from the outset Telem Civil (Qld) v CFMEU 2013
? Casual work: informal, irregular and uncertain, and not likely to continue for any length of time Reed v Blue Line Cruises 1996 o This definition does not apply to the NES and EA's
? Long-term casual s 12 FWA: o A national system employee who is a casual employee and has been employed on a regular and systematic basis for at least 12 months.
? What is continuing? It can include workers who may be hired under a contract that can be terminated on short notice, or employees who have fixed-term contracts. It is nevertheless a convenient label for noncasual hiring.
? You can distinguish a casual from a part-timers as casuals have loading and part-timers have benefits. o Fixed term vs continuing
? Fixed term: contract comes to an end at a fixed point in time. The contract will automatically expire without the need for termination.
? Incudes: when the employee must retire at a certain age Bolotin v University of Melbourne 1996
? A contingent term contract Carr v Blade Repairs 2010
? If the agreed term is long, if there is no express termination clause provided, any attempt to terminate will bea breach of contract.
? If the employer allows the employee to work past that date, they will be taken to have agreed to the employment becoming continuing and may need to give 'reasonable notice' to terminate. o 'Reasonable notice' will be implied even if the parties have expressly dealt with the issue of termination NSW Cancer Council v Sarfaty (1992) o Part time vs full time
? Part time: when an employee is engaged to work less than 38 hours per week, or whatever the 'standard' is for that industry. The ABS treats anyone working for less than 35 hours per week as part time. o Trainees
? Trainees are regulated by the Education and Training Reform Act 2006
? Apprentices are considered to be employees Rowe v Capital Territory Health Commision
? What about unpaid 'work experience' or performing training before starting?
? If a job applicant agrees to complete certain training as a condition of being employed, they may not be an employee at this stage.
? But if they enter into an employment contract and start performing actual work, albeit under supervisions, the employer cannot simply designate it was unpaid 'training' and refuse to pay them Workplace Ombudsman v Golden Maple (2009)
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