Home' Executive Employment Contracts : Issue 1 Contents 25
It’s also important that the executive’s departure is communicated internally
to people within the business who previously reported to, or relied on, the
executive – and that this is done in a timely and appropriate manner.
Has the executive exercised a “workplace right” under the Fair Work
Be aware of, and ensure that you do not breach, the adverse action
provisions in the Fair Work Act, particularly for workplace rights. These
provisions prohibit an employer from taking adverse action against an
executive because that executive has (or has exercised) a “workplace right”
and the remuneration threshold exclusion does not apply to adverse action
Under the Fair Work Act, an executive’s ability to make a complaint or inquiry
about their employment constitutes a “workplace right”. Therefore if an
employer takes any adverse action, including commencing an investigation,
against an executive because that executive made a complaint or inquiry
about their employment, then the employer should seek advice immediately
to avoid falling foul of the adverse action provisions in the Fair Work Act.
What representations were made to the executive when employed
and therefore will allegations of “misleading and deceptive conduct”
be a risk?
Employers must consider their obligations under the Competition and
Consumer Act. This prohibits employers from making misleading claims
about the availability, nature, terms or conditions of, or any other matter
relating to, an executive’s employment.
For example, in some cases, on termination an executive may make a claim
that the termination breaches a representation made prior to employment,
and therefore is a breach of the Competition and Consumer Act.
Have we considered the “unfair contracts” jurisdiction if the executive
is employed in NSW or Queensland?
In New South Wales and Queensland, employers should also be aware
that State System employees can lodge an unfair contracts claim on the
basis that their employment contracts are “unfair”. The Industrial Relations
Act 1996 (NSW) confers upon the Industrial Court of New South Wales
the power to vary, or declare void, contracts, arrangements or collateral
arrangements under which work is performed in an industry in New South
Wales. The power of the court to make orders is dependent on a finding that
the contract or arrangement is unfair, harsh or unconscionable, or contrary to
Similarly, section 276 of the Industrial Relations Act 1999 (Qld) confers
upon the Queensland Industrial Relations Commission the power, upon
application by an employee, to amend or declare void a contract it considers
an unfair contract (ie. a contract that is harsh, unconscionable, unfair,
against the public interest or that provides less terms than the relevant
industrial instrument or the Act).
While both jurisdictions exclude employees from seeking a remedy if they
earn above the statutory cap, do not assume that executives are necessarily
always excluded from bringing a claim.
termination with notice
An executive employment contract may be terminated by giving appropriate
notice. Notice is the act of informing the other party to the contract of the
intention to terminate that contract upon the expiry of the relevant notice
The amount of notice that must be given will usually be determined by the
express terms of the employment contract. Although it is unlikely, it is also
important to consider whether an industrial instrument, such as an award or
enterprise agreement, might also apply to the executive’s employment. An
industrial instrument may identify a period of notice that must be given to an
executive in order to terminate that executive’s employment.
Where an employment contract contains an express notice provision,
you must ensure it’s effective and can be relied upon. If a court holds that
a notice provision cannot be relied upon, then the principles relating to
reasonable notice will apply.
Learn more in Part 6.
Changes to an executive’s position and notice
In Quinn v Jack Chia (Australia) Ltd  1 VR 567, it was held that where
there is a fundamental change to an employee’s position that was not
contemplated by the original employment contract, the original contract will
cease to apply. Instead a new contract, the terms of which are implied by
law, will apply.
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