DATED2008
EMPLOYER NAME PTY LTD
(“Company”)
to
EMPLOYEE NAME
("Employee")
EMPLOYMENT AGREEMNT
THIS AGREEMENT is made the day of 2010
BETWEEN
EMPLOYER NAME PTY LTD ACN XXX XXX XXX of address, Melbourne, 3000
(“the Company”)
AND
THE EMPLOYEE NAMED IN THE SCHEDULE
(“the Employee”)
INTRODUCTION
- The Company conducts the business specified in the Schedule.
- The Companywishes to employ the Employee in the Positionspecified in the Schedule as from the Commencement Date specified in the Schedule and the Employee as agreed to serve the Company in that Positionas from that date.
IT IS AGREED as follows:-
1.DEFINITIONS AND INTERPRETATIONS
1.1.In this Agreement, where the following words and expressions are used with initial capital letters they have the meanings given below:
“Business” means the business of the Company;
“Business Day” means a day on which trading banks in Melbourne are open for business during normal hours;
“CommencementDate” means the date referred to in the Schedule;
“DutiesandResponsibilities” includes the Duties and Responsibilities as detailed in the Schedule and as amended in accordance with Clause 10 hereof;
“Interest Rate” means the rate for time being fixed under Section 2 of the Penalty Interest Rates Act 1983 (Vic);
“Key Performance Indicators” means the measurable and objective indicators of business performance and the Employee’s performance reasonably negotiated and agreed to at the Commencement Date and thereafter between the Company and the Employee;
“Position” means the position referred to in the Schedule;
“Remuneration” means the Remuneration as specified in the Schedule and as reviewed in accordance with Clause 3 hereof;
“Restraint Period” means either:
(a)Twelve months
(b)Six months
(c)Three months
“Restraint Area” means either:
(d)Australia
(e)Victoria
(f)Melbourne (including outer and inner suburbs)
(g)Melbourne CBD
“Termination Date” means the date the employment of the Employee is terminated.
1.2.Headings to Clauses are for convenience only and shall not affect the interpretation of this Agreement.
1.3.Any reference to an Annexure, Clause or Schedule is a reference to an annexure to, clause of or schedule to this Agreement and any reference to this Agreement includes this Agreement, as amended, its schedules and any annexure.
1.4.Words and phrases defined in the Introduction or elsewhere in this Agreement shall have the meaning therein given to them.
1.5.Any reference to “$” is to the lawful currency for the time being of the Commonwealth of Australia.
1.6.Any reference to a statute includes all subordinate legislation made thereunder and any amendment, consolidation, replacement or reenactment thereof.
1.7.Where any obligation of this Agreement fails to be performed on a day other than a Business Day, this Agreement shall be construed as requiring that obligation to be performed on the next Business Day.
1.8.Where any time period is required to be calculated from a specified date, that date shall be included in the calculation.
1.9.The singular includes the plural and vice versa.
1.10.The masculine includes the feminine and neuter genders.
1.11.Any reference to a person includes a corporation.
1.12.Words importing the singular are deemed to include the plural and vice versa.
1.13.Words denoting any gender include all other genders.
1.14.Headings are for convenience only and do not affect the interpretation of this Agreement.
2.Appointment
2.1.The Company employs the Employee from the Commencement Date in the Position and the Employee accepts employment in thatPosition and agrees to serve the Company subject to the terms and conditions contained in this Agreement from the Commencement Date subject to Clauses11,12, 13, and 14 hereof.
2.2.the Employee agrees that heis a fit and proper person to carry out the Duties and Responsibilities and agrees to immediately advise the Company in the event that:
2.2.1.a reasonable person in the position of the Employer would form the view that the Employee is no longer a fit and proper person to carry out the Duties and Responsibilities;
2.2.2.the Employee is made bankrupt;
2.2.3.the Employee is charged or convicted of an indictable offence or any offence involving fraud or dishonesty.
2.3.This Employment Agreement revokes all previous written verbal or implied agreements between the parties relating to the subject matter of this Employment Agreement.
2.4.Notwithstanding anything contained herein, the Employee will serve a Probationary Period of 3 months from the Commencement Date during which time his employment may be terminated on the giving of five Business Days notice without reason.
3.Remuneration
The Company shall provide the Remuneration to the Employee as specified in the Schedule. Remuneration is reviewed by the Companyon an annual basis and is subject to change without notice. Such reviews may or may not result in a change to the Remuneration.
4.relationship
The relationship between the parties is that of an employer and employee and this Agreement will not operate so as to create a partnership, agency or joint venture of any kind between the parties.
5.Performance Review
5.1.The performance of the Employee will be reviewed by the Company at least annually during each period of twelve months after the Commencement Date.
5.2.This performance review shall be conducted against the Duties and Responsibilities and the Key Performance Indicators as agreed from time to time and may take into account any other matters considered relevant by the Company.
6.Expenses
The Company will reimburse the Employee for all expenses reasonably and necessarily incurred by the Employee in the proper discharge of the Employee's Duties and Responsibilities. The Employee must:
6.1.provide evidence to substantiate any such expenses incurred;
6.2.obtain prior approval from the Company for any unusual expenses or expenses in excess of $100.
7.Superannuation
7.1.Superannuation contributions shall be made by the Company at the rate required by the Superannuation Guarantee (Administration) Act, calculated only upon the Remuneration.
7.2.The Employee may elect to make additional superannuation contributions from his Remuneration. Any such employee contributions will be made by way of salary sacrifice.
8.Leave
8.1.The Employee is entitled to annual leave, long service leave, personal leave and parental leave in accordance with the provisions of any applicable legislation and awards. These entitlements are summarised below:
8.1.1.Annual Leave
(a)Entitlement to 20 days paid leave per annum. This leave accrues on a pro rata basis and is cumulative.
(b)Entitlement to Public Holidays as prescribed from time to time under relevant State legislation.
(c)the Employee must apply in writing for annual leave at least two weeks before the leave commences.
(d)the Company may require the Employee to take paid annual leave if the Employee has accumulated more than six weeks annual leave.
8.1.2.Long Service Leave
(a)Entitlement to long service leave in accordance with the Long Service Leave Act 1992 (Vic).
8.1.3.Personal Leave (includes sick leave and carers leave)
The Employee shall be entitled to:
(a)10 days paid personal leave (which includes sick and carers leave) for each continuous year of employment;
(b)2 days unpaid personal leave for each occasion when a member of the Employee’s immediate family or household requires care or support because of illness or injury or unexpected emergency;
(c)2 days compassionate leave for each occasion when a member of the Employee’s immediate family or household develops a personal illness or injury that poses a serious threat to his/her life, or dies.
(d)In calculating the Employee’s entitlements to leave as outlined in the preceding paragraphs, such leave will be based upon the ordinary hours worked by the Employee. Paid personal leave shall accrue on a pro-rata basis.
(e)The Employee must provide satisfactory evidence, including a medical certificate signed by a medical practitioner, of any illness that has prevented him/her from working for a day or longer, or evidence of the death or illness of a member of the Employee’s immediate family or household as the Company reasonably requires. No payment of personal leave will be made if such a request by the Company is not complied with.
(f)When the Employee’s personal leave entitlements have been exhausted during continued absence due to illness, the Employee agrees to utilise any accrued annual leave, which shall be deemed to be converted to personal leave at the Employee’s request. When the Employee’s accrued annual leave entitlement has been exhausted, any further absence due to illness will be leave without pay.
(g)The Employee must notify his manager of any illness and the anticipated duration of any absence from work due to illness at the earliest opportunity.
8.1.4.Parental Leave
(a)12 months unpaid.
8.2.Payment while on annual, personal and long service leave will be calculated at the average daily remuneration.
8.3.Upon termination, the Employee is not entitled to be paid any accrued personal leave entitlements and agrees to forgo any accrued personal leave entitlements upon termination.
9.Duties and Responsibilities
The Employee must:
9.1.perform the Duties and Responsibilities to the best of the Employee's ability and to the satisfaction of the Company. The Duties and Responsibilities may be amended by the Company at any time;
9.2.devote the whole of the Employee's time, attendance and skills during normal business hours, and at such other times as may be reasonably necessary, to the proper conduct of the affairs of the Company and to the performance of the Employee's duties under this Agreement;
9.3.the Employee acknowledges that they will be required to work hours exceeding 38 hours per week and acknowledge that such additional hours are reasonable in the circumstances and are necessary for the proper conduct of the business of the Company and the performance of the Employee’s duties under this Agreement; and
9.4.obey all reasonable and lawful directions of the Company
10.Confidentiality
10.1.The Employee must preserve the confidentiality of any document or information relating to the Company's affairs or clients which are not in the public domain and which came in to the Employee's possession or knowledge in the course of the Employee's employment by the Company. The Employeemust not, directly or indirectly, divulge such confidential information except as required by law or with the prior written authority of the Company.
10.2.The Employee must not use or attempt to use any confidential information acquired during the course of the Employee's employment in any manner that may cause loss, damage or injury to the Company.
10.3.The obligations of the Employee pursuant to the foregoing provisions of this clause shall survive the termination or expiry of this Agreement.
10.4.For the purposes of this clause information will be prima facie secret or confidential if it is not lawfully in the public domain and relates to the:
10.4.1.business methods;
10.4.2.know how;
10.4.3.financial affairs and accounting methods;
10.4.4.intellectual property, technology or research and development;
10.4.5.future plans; or
10.4.6.clients;
of the Company.
11.Summary Termination
11.1.The Company may by notice in writing summarily terminate the Employee's employment under this Agreement (without payment of notice, compensation or damages) for any cause warranting summary dismissal at common law or if the Employee:
11.1.1.engages in any act or omission constituting serious misconduct; or
11.1.2.in the reasonable opinion of the Company, wilfully fails or wilfully neglects to perform or carry out the Duties and Responsibilities in a satisfactory manner; or
11.1.3.commits a serious or persistent breach or non-observance of any of the provisions of this Agreement; or
11.1.4.refuses or wilfully neglects to comply with any lawful or reasonable order given to the Employee by the Company; or
11.1.5.is convicted of any indictable offence or becomes bankrupt.
11.2.If the Employee's employment is terminated under this clause the Employee shall be entitled to the Remuneration and other benefits under this Agreement up to the conclusion of the day of termination less any amount which the Company is entitled to claim by way of set-off pursuant to clause 12 hereof.
11.3.The provisions of this clause are without prejudice to any other rights the Company may have in connection with any breach of duty by the Employee.
12.Termination Through Illness
If the Employee is unable through illness, physical disability or other reason to attend to duties for a continuous period of not less than two months, or for not less than 45 working days within a 3 month period, the Company may, at its option, and despite any medical opinion or prognosis rendered to it, terminate this Agreement by one month's notice in writing. The Employee is not entitled to any payment in lieu of notice or any Remuneration during this period. Nothing in this clause shall limit the Company's absolute discretion as to whether it will enforce, or not enforce, its terms.
13.Suspension
The Company may suspend the Employee from active duties under this Agreement while any action or conduct of the Employee is being investigated which may give rise to the summary termination of the Employee’s employment under this Agreement by the Company pursuant to clause 11 of this Agreement. During such suspension the Employee is not entitled to the Remuneration.
14.Termination by notice
14.1.The Company may terminate this Agreement without reason by giving the following notice in writing to the Employee:
Employee’s period of continuous servicePeriod of Notice
with the Company
Not more than 1 year1 week
More than 1 year but not more than 3 years2 weeks
More than 3 years but not more than 5 years3 weeks
More than 5 years4 weeks
If the Employee is aged more than 45 years and has been employed by the Company for at least two years, an additional period of notice of one week applies.
14.2.The Employee may terminate this Agreement by giving four weeks’ notice in writing to the Company.
14.3.Where either the Employee or the Company elect to terminate the Agreement on notice, the Company may, in its absolute discretion, elect to:
(a)require the Employee to perform his Duties and Responsibilities under the Agreement for this notice period;
(b)make a pro rata payment of the Remuneration in lieu of actual notice to be calculated in accordance with the period of notice set out in paragraph 14.1; or
(c)require the Employee to complete any notice period at home or away from the Company’s premises and may relieve the Employee from performing any Duties and Responsibilities.
14.4.The parties may also terminate this Agreement by mutual consent.
15.Surrender of Property on Termination
On termination of this Agreement for any reason the Employee must immediately deliver to the Company:-
15.1.all documents in the Employee's possession or control relating to the business, affairs or clients of the Company, including confidential information; and
15.2.any property belonging to the Company including, but not limited to, business cards, client documents, client lists or contact details, and marketing material.
16.financial matters upon termination
Upon termination of this Agreement, the Employee agrees that the Company may set off against any monies owed to the Employee any amount for loss or damage suffered by the Company caused by or attributable to the Employee.
17.Settlement of Disputes
If any dispute or grievance arises under this Agreement, except pursuant to Clauses 11, 12, 13, and 14 such dispute or grievance must be dealt with in the following manner:-
17.1.the matter must first be discussed by the Employee and a senior person of the Company;
17.2.if not settled, the dispute must be referred for mediation to a person agreed upon between the parties;
17.3.if no person is agreed upon within 7 days, the dispute must be referred for mediation to a person nominated by the President of the Law Institute of Victoria;
17.4.until the conclusion of mediation or until the dispute is resolved, the Employee must continue to perform hisobligations pursuant to this Agreement unless otherwise directed by the Company. No party shall be prejudiced by the continuance of work;
17.5.the parties to the dispute undertake to co-operate to ensure that any dispute or grievance is addressed promptly pursuant to this clause.
18.Notice
18.1.Any notice, consent, demand, statement or other communication (Notice) to be given or made under this Agreement:
18.1.1.must be in writing;
18.1.2.may be signed in the case of the Employee, by the Employee or his legal personal representative, and in the case of the Company, by a person authorised to do so or the Company’s solicitors;
18.1.3.may be given by hand or sent by prepaid post to the address of the intended recipient as specified in this Agreement (or, where a new address has been notified in writing, to that address) or by facsimile or e-mail to the recipient's current facsimile number or e-mail address.
18.1.4.Notice if:
(a)posted will be deemed served two business days after posting;
(b)sent by facsimile or e-mail will be deemed served on the day of transmission.
19.COMPANY POLICIES
The Employee will comply with all policies of the Company existing from time to time.
20.conflict of interest
The Employee agrees that he will not allow any conflict of interest to exist between the Company and its clients and agrees to immediately disclose any such conflict as soon as practicable after becoming aware of such conflict.
21.NO OTHER ENGAGEMENTS
The Employeeis expected to devote his full time and energies to his position and should at all times act in the best interests of the Company in good faith and fairly. The Employee is not permitted to engage in conduct or undertake any other private business or employment or accept or maintain any directorship during his employment with the Company which, in the opinion of the Company may:
21.1.conflict with the interests of the Company; or
21.2.impair the Employee’s ability to undertake or complete his obligations under this Agreement.
22.Prohibition
The Employee must not:
22.1.accept payment of any benefit in money or kind from a person as an inducement or reward for any act or forbearance in connection with any matter or business in relation to the Company or the Duties and Responsibilities;
22.2.without the prior written consent of the Company (which shall not be unreasonably withheld), engage in any other employment, business or occupation or hold any other paid office; or