Fair Work Australia Employment Contract Template – Service with one employer is treated as service with a second employer in different circumstances depending on the relationship between the two employers
Service with one employer (first or old employer) is treated as service with two other employers (second or new employer) if two conditions are fulfilled:
Fair Work Australia Employment Contract Template
An entity (associate) can be a related entity of another entity in the following cases
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The term is defined in s.50AA of the Control Corporations Act when one entity controls another when the first entity makes decisions that determine the financial and operating policies of the second entity.
Service with one employer (first or old employer) is treated as service with another employer (second or new employer) which is not an affiliate of the first employer, if the employee is a transferred employee in connection with transfer of business from one. the person The flow chart below will help you determine whether an employee from the first employer to the second employer is a transfer employee or not
The employee worked in a cafe for his old employer The business was bought by the new employer The employee worked 3 shifts for the new employer doing the same job before being fired
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There was a transfer of employment because there was a transfer of business between the old employer and the new employer. There was a connection between the old employer and the new employer because the transfer of business involved the transfer of assets and further, since the new employer did not inform the employee in writing that he did not recognize his previous service, the service of the employee with the old employer was treated as service with the new employer.
An employee works for an old employer who supplies labor to a new employer. After two years, the new employer stopped outsourcing the work to the old employer The old employer terminated the employee’s employment and he was hired by the new employer, but was fired about 3 weeks later.
In relation to a transfer of business, an employee is considered a transfer employee when there was a connection between the old employer and the new employer because the new employer stopped outsourcing the work to the old employer. The employee is not informed in writing by the new employer that prior service with the old employer does not count as service with the new employer and is therefore counted.
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No transfer of employment Non-affiliated entity – no relationship between employer Szybkowski v Monjon Australia Pty Ltd
The employee worked as a security guard for the former employer, which provided contract site security. A tender process led to the award of the contract to the new employer. The employee was hired with the new employer but was fired the following month. It is held that there is no connection between the employers and hence there is no transfer of business. Thus, service with the old employer does not count as service with the new employer.
John Lucas Hotel Management v Healy  FB 1198 (Drake SDP, Hamburg SDP, Bull C, 22 February 2013), [(2013) 224 IR 260].
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The employee was hired by his old employer to work in a pub The old employer operated the pub under a lease with the owner The old employer gave up the lease and the owner leased it to the new employer The new employer hired the employee for the same job, then fired him On appeal, it was found that there was no relationship between the old employer and the new employer , because there is no evidence of transfer of property under any contract between the owners.
The employee had been working as a security guard for a contractor (former contractor) at the Federation University of Ballarat for about eight years. A new contractor was successful in tendering to provide security services and hire staff. After about three months of employment, the employee was advised that the new contractor had decided not to continue his employment beyond the probationary period.
The employee applied for unfair dismissal. The new contractor objected on the grounds that the employee’s continuous service at the time of dismissal was less than the minimum period prescribed under the Fair Work Act.
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The Commission found that the previous contractor and the new contractor were not related entities. There was no transfer of business as there was no connection between the two employers. As a result, the employee’s service with the previous contractor is not considered and the employee is not protected from unfair dismissal as his service period with the new contractor is only three months. The appeal is dismissed.
Salagrass v Fingal Glen Pty Ltd in Adelaide Riviera Trust T/A Comfort Hotel Adelaide Riviera  FWA 1401 (Steele C, 3 March 2011).
An employer of 3 different businesses owned by separate unit trusts with separate trustee companies Each trustee company had a single director and each trust had a single financial manager, both employed by the same accountancy firm. They are considered related entities Employees of related organizations are counted for purposes of determining whether the employer is a small business
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Adams v Condamine Catchment Natural Resource Management Corporation Ltd t/a Condamine Alliance  FWA 5374 (Richards SDP, 22 July 2010), [(2010) 205 IR 230].
The employer is considered not to be related to other entities that have provided funds under the contract for the performance of project work, as this relationship does not give the employer control over the other entities. Accordingly, employees of other organizations are not considered for purposes of determining whether an employer is a small business.
It covers all important terms of employment, starting date, position and duties, working hours and remuneration
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The main difference between casual and part-time is that a part-time employee expects ongoing work.
In contrast, casuals have no guaranteed working hours or prospects of ongoing work in the future. Casual employees offer a lot of flexibility to businesses as casuals can be hired as per the need. Casual employees are not entitled to the same benefits as part-time employees. They do not receive entitlements such as annual leave, sick leave, notice on termination and recurring pay.
Casual workers are paid a higher hourly wage than equivalent full-time or part-time workers, known as ‘casual loading’, and are paid because they do not receive benefits such as sick leave or annual leave.
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A casual employee has the right to change to full-time or part-time employment under certain circumstances. This is called incidental conversion
Casual workers who have worked for their employer for 12 months must be given the option to convert to full-time or part-time (permanent) employment by their employer. For this to happen certain eligibility requirements must be met If they work for 12 months, work regular hours for 6 months and continue to work their regular hours as a permanent employee without significant changes, the employer offers them a casual conversion in writing (they don’t have to accept it).
Small business employers (fewer than 15 employees) do not have to pay employees for casual shifts, although an eligible casual worker hired by a small business may request to convert to permanent employment at any time on or after their 12-month anniversary.
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An employment contract helps set the ground rules in black and white, so everyone is clear about their responsibilities and how everything will work. You need a well-written contract to enforce your rights and ensure your business is legally protected if something goes wrong.
A restraint of trade clause helps protect your business interests by preventing your employees, contractors, clients and customers from soliciting or approaching former employees after they have terminated employment with your company.
Remember that trade restrictions can only be enforced if you can prove that the restriction is necessary to protect your legitimate interests. If it lasts too long, covers a geographic area, or extends beyond the industry you work in, it might not.
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Please consult the FairWork website to review any awards and agreements that may apply before using this template.
As an employer, it is your responsibility to pay your employees the minimum wage and entitlements under the applicable modern award or enterprise agreement. |
The award applies to employers and employees depending on the industry and type of work they operate in. Each award includes coverage clauses (usually clause 4) and job classifications (usually a salary clause or schedule).
Fair Work Information Sheet 2014 Pages 1 4
Over 100 industry or occupational awards cover the majority of people working in Australia An employer may be covered by more than one award depending on the employee’s occupation
You can use my award search tool to check award coverage
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