Reading time: 3 minutes

Welcoming employees into your business is an exciting time, and you will need to consider the following to ensure that your new starter can hit the ground running: 

  • working arrangements, 
  • salary, 
  • superannuation, and 
  • training. 

But what if you haven’t yet drafted an employment agreement? We step you through what an agreement should include and potential consequences if you don’t provide an employment contract.

What Should an Employment Agreement Include?

An employment agreement is an agreement between you, the employer, and your employees. It sets out the nature of the employment (full-time, part-time, casual) and also the specific terms and conditions of the employment. Employers should understand their obligations before employing any new team members.

National Employment Standards

Under Australian law, regardless of whether there is an employment agreement in place, a set of minimum entitlements applies automatically to every worker. These are known as the National Employment Standards or NES and include:

  • maximum weekly hours;
  • requests for flexible working arrangements;
  • annual leave;
  • parental leave and related entitlements;
  • personal carer’s leave and compassionate leave;
  • community service leave;
  • long service leave;
  • public holidays;
  • notice of termination and redundancy pay; and
  • fair work information statement. 

Employers can’t enter into an employment agreement with an employee that offers anything below the NES. It’s also important to know whether an industry award will cover your employees. This will outline the minimum pay for your employees as well as some of the conditions of their employment. If no award applies and you do not have an enterprise agreement, your employee will follow the agreement you both agreed on.

Do I Need to Give My Employee an Agreement in Writing?

Although you don’t need to provide an employee with a written agreement, employers may struggle if a dispute arises in the future and there is no record about the terms of employment. If you can’t have a formal agreement in place on day one, it’s a good idea to at least make a note of the basic agreed upon terms for record-keeping purposes. Maintaining a record of the employee’s start date, salary and entitlements and work days and time will help reduce the risk of a dispute arising in the future.

What Happens if I Don’t Give Them an Agreement?

If you don’t give your employee an employment contract, the NES will still apply as well as any applicable award and the national and state employment legislation. The Fair Work Act 2009 (Cth) and Fair Work Regulations 2009 (Cth) make up Australia’s national employment law framework. 

Even if you don’t provide an employee with a written agreement, the law still requires employers to provide every new employee with a copy of the Fair Work Information Statement. This Statement provides your employees with the required information regarding their rights under the NES.

Key Takeaways

An employment agreement typically sets out clauses addressing: 

  • restraint of trade and confidentiality;
  • commission structures;
  • dispute resolution processes; and
  • annual salary.

The contract enables you as an employer to clearly outline your expectations to the employee. Remember that regardless of whether you have a written agreement or not, the NES will still apply along with any relevant award. Your agreement cannot provide your employee standards that fall below those set out in the NES.

If you have any questions or need assistance drafting your employment contract, get in touch with our employment lawyers on 1300 544 755.


Australia’s Global Talent Visa: How to Attract Top Talent

Thursday 7 October | 11:00 - 11:45am

Understand how to navigate Australia’s complex migration system to attract top overseas talent with our free webinar.
Register Now

5 Essential Contracts for your Online Business

Thursday 14 October | 11:00 - 11:45am

Learn which key contracts will best protect your online business with our free webinar.
Register Now

Key Considerations When Buying a Business

Thursday 11 November | 11:00 - 11:45am

Learn which questions to ask when buying a business to avoid legal and operational pitfalls, so you can hit the ground running. Join our free webinar.
Register Now

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. From just $119 per week, get all your contracts sorted, trade marks registered and questions answered by experienced business lawyers.

Learn more about LVConnect

Need Legal Help? Get a Free Fixed-Fee Quote

If you would like to receive a free fixed-fee quote or get in touch with our team, fill out the form below.

Our Awards

  • 2020 Excellence in Technology & Innovation Finalist – Australasian Law Awards
  • 2020 Employer of Choice Winner – Australasian Lawyer
  • 2021 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review
  • 2021 Law Firm of the Year - Australasian Law Awards
  • 2019 Most Innovative Firm - Australasian Lawyer