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Employment contract - can they really make him to agree to this?


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25 replies to this topic

#1 Mummy Duck

Posted 13 April 2012 - 06:29 PM

Dh work has given him a new contract and said sign it OR you will be made redundant. The contract has some rather odd clauses like

* He cant work in the same industry for 12 months. Dh is a labourer???? his workplace has provided him no additional training in his time with them.  What else is he supposed to do?

* He has been with them for 5 years and the new contract says that he would be on probation for 3 months? His job has not changed with the new contract. Can they do that each year?

* They want him to agree to extra unpaid overtime to cover shifts for other staff that dont finish work or are sick. He is fine to do extra to finish his duties but they want him to do extra work rather than pay overtime for other staff. That cant be right?

* Can they actually say sign or you will be redundant would the position be redundant or not?

Thanks for any help.

#2 lolz

Posted 13 April 2012 - 06:32 PM

I'd be getting Fair Work Australia on the phone right now. I'm no expert but none of that sounds right to me.


Good luck  sad.gif

#3 Cyaira

Posted 13 April 2012 - 06:37 PM

IIRC if things are below award/illegal and the contract isn't negotiated (to be equivalent or better than the award) he doesn't have to do these things or something. But I'd double check with fair work australia.

I'd recommend he takes the redundancy and moves on, what a crap employer. Also I think they can restrict where you work after your period of employment if it was part of his original contract but as he's a labourer I'm not sure if it counts.

Edited by Cyaira, 13 April 2012 - 06:38 PM.


#4 Mummy Duck

Posted 13 April 2012 - 06:42 PM

Getting another job is not an option we would like to explore as the industry is very small. Dh is highly skilled in this industry. Positions would be few if at all.

#5 Frannie

Posted 13 April 2012 - 06:51 PM

If you're unhappy with the terms of a contract presented to you, then you negotiate. I would get advice from Fair Work Australia, a Company cannot force someone to sign a contract under duress, which is what they're claiming with "Sign it or nick off". I draft and negotiate contracts daily, (albeit from a Govt Dept perspective not private industry) and advise him to not sign anything until he understands the clauses and the repercussions if he breaks them.

If he has a union, whether he is a member or not, get him to contact them.

Contracts are not set in stone, until executed. He can request a negotiation on T's and C's, and he is well within his rights to question those clauses, as they sound very restrictive, and may have an impact on any future earnings.

Good luck.

#6 Chardonnay Buffay

Posted 13 April 2012 - 06:52 PM

What, as a labourer?

#7 Mishu

Posted 13 April 2012 - 06:54 PM

What is his employment status at the moment? Is a permanent employee? A temp? A contractor?

#8 Mummy Duck

Posted 13 April 2012 - 07:00 PM

He is permanent full time as a factory manager.

The industry is very specialised and most of the training is on the job. Dh has worked in this field for 25 years and can not only do the job but fix the machines and more.

#9 JRA

Posted 13 April 2012 - 07:12 PM

QUOTE
He is permanent full time as a factory manager.

The industry is very specialised and most of the training is on the job. Dh has worked in this field for 25 years and can not only do the job but fix the machines and more.


Um, why did you say he was a labourer. That is generally very different to a factory manager,

There has been various cases over time regarding restraint of trade I think, when it comes to contracts and not being employed elsewhere. Most I know of have been "you can't work for a customer/competitor" type thing, and it is an interesting/complex law.

As has been said, speak to fair work australia.

Also some labor laws/fair work things in the past have not been available to higher paid workers, I don't know if that is still the case

#10 MaxandMe

Posted 13 April 2012 - 07:20 PM

They cant say sign or you will be redundant - for many reasons.

What can or can't go in the contract will depend on whether he is covered by an award or enterprise agreement - if he is, nothing can go in (well its not enforceable) that is less beneficial than the award or enterprise agreement.

The probation period would have no effect - you can apply for unfair dismissal once you have completed 6 months continuous employment with an employer regardless of what the contract says about probation.

like the other guys said, go to fwa.gov.au or fwo.gov.au and have a chat to someone. alternatively call the relevant union.

hth

#11 Mummy Duck

Posted 13 April 2012 - 07:29 PM

QUOTE (JRA @ 13/04/2012, 07:12 PM) <{POST_SNAPBACK}>
Um, why did you say he was a labourer. That is generally very different to a factory manager,

He does some management as far as delegating other staff but mostly performs physical work. Sorry I thought that would be considered a labourer.

#12 Mummy Duck

Posted 13 April 2012 - 07:32 PM

Fair work aust said they cant do anything with regard to contract negotiations only helping after a contract is signed. We are going to go the the workplace rights ombudsman and also see a lawyer.

#13 Stoked

Posted 13 April 2012 - 07:36 PM

QUOTE (JRA @ 13/04/2012, 07:12 PM) <{POST_SNAPBACK}>
There has been various cases over time regarding restraint of trade I think, when it comes to contracts and not being employed elsewhere. Most I know of have been "you can't work for a customer/competitor" type thing, and it is an interesting/complex law.

I thought non-compete clauses in Australia were not enforceable anyway?

#14 MaxandMe

Posted 13 April 2012 - 07:37 PM

they cant help you negotiate a contract, but they should have been able to give you advice on the redundancy award/agreement coverage/ probation period issues and explained to you how contracts work etc. seems a bit odd, but always a good option to see a lawyer, if you can afford one.

#15 JustBeige

Posted 13 April 2012 - 07:51 PM

Has his company recently been taken over OP?  or bought out or had some change of ownership?   that is the only reason that I can think of that they would make him go through his probation again.  or he had a change of position

Edited by JustBeige, 13 April 2012 - 07:53 PM.


#16 Goggie

Posted 13 April 2012 - 07:54 PM

Is the company changing hands OP? Sometimes if a company is being sold the new owners can offer new terms and conditions...it's hard to do and they need to he able to demonstrate it's a comparable offer but it can be done.
Some of the clauses sound a bit off though..
And to the PP, non compete clauses can be enforced here, there was a recent decision where a consulting professional took a role with a competitor and his original company sued, it was ruled that he was unable to consult in his industry for 2 years..

#17 Mummy Duck

Posted 13 April 2012 - 08:15 PM

No the company has not changed hands. The company was taken over about 4 years ago and they gave him the contract he is currently on. Its taken this long for them to review his contract.

#18 Goggie

Posted 13 April 2012 - 08:30 PM

I'd get legal or union advice tbh. In reference to your specific questions, once you are employed with a business you only need to go through probation once, regardless of a change in job. Probation is linked to continuous service overall rather than service in the one role as such.
Regarding the overtime, in management roles not covered by awards,you can often find clauses regarding reasonable additional hours or unpaid overtime, it's very common! Up to your DH to negotiate what is reasonable to all parties.
On the redundancy threat, the role is either redundant or it's not. A new contract should have no bearing on that so this is the one condition I'd be most concerned about. Seek professional advice on this one.
Good luck!

Edited by tauruspregnant!, 13 April 2012 - 08:30 PM.


#19 Mummy Duck

Posted 13 April 2012 - 10:19 PM

Thanks all it dosnt help that Im about to give birth to our 4th child in a few months.  sad.gif

#20 JRA

Posted 13 April 2012 - 10:21 PM

QUOTE
I thought non-compete clauses in Australia were not enforceable anyway?


That was my thoughts, but it is a few years.

But it doesn't stop people trying to put it in there

#21 ChickenNuggets

Posted 13 April 2012 - 10:22 PM

Oh crap MD... I was wondering what was going on. Wish I could help sad.gif

#22 pickledbrain

Posted 13 April 2012 - 10:34 PM

It has been a while, but I think they can make him redundant as the work hours / rates etc. have changed significantly enough.  I was in a similar position and it was either sign (hours increased and added in weekend work) or I was to be made redundant as the current role (with the current conditions) didn't exist anymore.  I took the redundancy.

I wonder with the non compete claus if they know something that you don't yet - a new place opening up which would need DH's skills or his skills will transfer across to another place easily so are trying to con him into staying with the one company.

Get expert advice on the contract and make sure he takes his time in signing it.

#23 Mummy Duck

Posted 13 April 2012 - 10:36 PM

How long can you take to research it before signing it?


#24 Goggie

Posted 13 April 2012 - 10:49 PM

Non compete clauses are in most large companies contracts. They are difficult to enforce but if your skills are highly sought after in the industry then they can pursue it. Found a law link that helps explain it.

http://www.thomsonslawyers.com.au/awms/Upl...pril%202012.pdf

Just saw yr update, I think 1 week would be reasonable, that is what our company has provided before- you might be able to push it out a couple more days but that's about it.

Edited by tauruspregnant!, 13 April 2012 - 10:51 PM.


#25 Pearlberry

Posted 13 April 2012 - 11:13 PM

QUOTE (pickledbrain @ 13/04/2012, 11:34 PM) <{POST_SNAPBACK}>
I wonder with the non compete claus if they know something that you don't yet - a new place opening up which would need DH's skills or his skills will transfer across to another place easily so are trying to con him into staying with the one company.


I would have thought that they would make the contract more attractive overall if this was the case. You wouldn't want to risk him not signing.




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