Like all employees, those employed for a fixed term need to be aware of the particulars of their employee agreement, called a fixed term contract. Apart from knowing the conditions of their employment, it is essential for these workers because it could materially impact their rights in certain situations. This article details what fixed term employees should look for in their employment contract.
Fixed Term Employment
A fixed term employee is a worker hired for a particular period or task. The classic example is Santa Claus in the lead up to Christmas. In reality, fixed term workers make up a healthy percentage of the educational and health sectors.
Employers typically administer the fixed term contracts which govern fixed term employees (notwithstanding provisions some awards and registered agreements also contain).
Fixed term contracts stand in contrast to permanent employment contracts. Whereas an agreement for the latter usually specifies a start date, the former should also contain an end date or event. While these kinds of employment differ, fixed term employees have the same rights, entitlements and pay rates as permanent staff. Contrary to opinion, fixed term employees are not casual employees. The fact that their rights and pay rate mimic ongoing staff reflects this.
What Should You Look For in Your Fixed Term Contract?
Most importantly, you need to check that your fixed term contract specifies when your employment definitively ends. Further, your agreement should state that both you and your employer forego any right to terminate employment before that time in the absence of an event or type of conduct. For example, an agreement could provide that termination will not occur before a set date unless the employee has an accusation of misconduct against them proved.
These clauses affect your right to make an unfair dismissal claim if your employer terminates you before that date. A set end date means that termination occurs by the contract. In that instance, you have no access to the entitlements listed in the National Employment Standards concerning notice of termination and redundancy pay. Most importantly, you cannot make a claim of unfair dismissal against your employer under the Fair Work Act 2009 (Cth).
However, if the contract specifies a date or event of termination and your employer terminates you before then for reasons not provided for in the contract (for example, underperformance), you can make an unfair dismissal claim. As employees must lodge these claims within twenty-one days, knowing your agreement means you are aware of your rights and are possibly better able to meet this deadline.
You also need to ensure that your agreement provides you with the same entitlements as ongoing, permanent staff. For example, annual leave, public holidays, personal carer’s leave and penalty rates if applicable. Your base wage rate should also be the same as ongoing staff. Sometimes employers believe that a fixed term worker is akin to a casual employee. If that is the case, you will not receive the same employee entitlements – however, your pay rate would be higher.
Also, as an employee, you need to be sure that your fixed term contract provides the fundamentals of employment. Your employer must provide a safe workplace where you can work free from discrimination, harassment and bullying. If your income reaches the acceptable threshold, your employer should also make superannuation contributions on your behalf as well as withhold appropriate amounts of income tax.
If you are a fixed term worker whose employer has continually employed you under successive agreements, be aware that this could give you a right to redundancy, notice and unfair dismissal.
For example, an employer who continually uses fixed term contracts to avoid purposefully having to give appropriate notice or make redundancy payments as per the National Employment Standards might be found unable to rely on the relevant exemption in the Fair Work Act 2009 (Cth).
Similarly, if an employer has previously hired a person continuously under successive fixed term employment contracts, they might have an action for unfair dismissal. If the employer failed to renew the agreement, the Fair Work Commission might determine the employee as permanent staff. They would base this assessment on account of the expectation, founded on the employer’s past actions, that employment would continue.
If you have any questions about your right as a fixed-term employee, or require assistance reviewing your employment contract, get in touch with our employment lawyers on 1300 544 755.