Several major developments in the doctrine of implied contractual terms have occurred in response to two modern corporate phenomena: the increasing proliferation of company policy manuals which are commonly written, and delivered to new employees along with their letter of appointment, by Human Resources; and the complicated and protracted negotiations, much of which takes place while an individual is still employed by their previous employer,
that is a characteristic of modern recruitment techniques, particularly at a senior level.

Not only have these developments led to an expansion in the range of breach of contract claims that may be pursued by former employees, but given the details of the 2008 legislation there is also a possibility that actions against former employers for breaches of the Trade Practices Act 1974 (such as actions pursuant to sections 52 for misleading and deceptive conduct by an employer during contractual negotiations) may become much more frequent, because for the reasons explained above, no employee on a common law contract who earns at least $100,000 will have the option of suing their employer for the breach of an award term. These employees will need to turn to alternative avenues of litigation. The cases of Nikolich and Walker demonstrate some of the most recent
developments in this area of employment contract litigation

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On June 16 2008, Prime Minister, Kevin Rudd and Minister for Workplace Relations, Julia Gillard, released the 10 new National Employment Standards (NES), as a part of its new industrial relations system. The NES are a key element of the Rudd Government’s new modern industrial relations system and will commence, from 1 January 2010.

The federal government’s 10 new NES are:
• Maximum weekly hours of work – 38 hours per week (or reasonable additional hours at the employers request).
• Request for flexible working arrangements – if an employee is a parent, or has a responsibility for the care of a child
under school age, they may request from their employer, a change in working arrangements for the purpose of assisting
them to care for the child.
• Parental leave and related entitlements – Under the Workplace Relations Act 1996 (the Act), there was an entitlement
to 12 months unpaid parental leave. Under the new standards, this period may be extended, given at least
four weeks written notice and on the approval of the employer. The employer must agree to the requested extension,
unless they has reasonable business grounds for refusing. Couples who work together can also be entitled to
take 12 months of parental leave sequentially to care for a child.
• Annual leave – four weeks annual leave.
• Personal/Carers leave and compassionate leave – this includes 10 days Personal/Carers leave per year. 2 days of
compassionate leave can be taken per occasion (a permissible occasion) when a member of the employee’s immediate
family or household: contracts or develops an illness that poses a serious threat to his or her life; sustains an
injury posing a serious threat to his or her life; or dies.
• Community service leave – this may include: jury duty; carrying out a voluntary emergency management activity; or
an activity prescribed in regulations, that is of a community service nature as an eligible community service activity.
• Long service leave
• Public holidays – there will be 8 guaranteed Commonwealth public holidays, in addition to any other public holiday
declared by a State or Territory.
• Notice of termination and redundancy pay – an employer must not terminate an employee’s employment unless
they have given the employee written notice of the day of the termination (which cannot be before the day the notice
is given). Additionally, an employee is entitled to redundancy pay if their employment is terminated: at the employer’s
initiative, because they no longer require the job done by the employee to be done by anyone, except
where this is due to the ordinary and customary turnover of labour or because of bankruptcy or insolvency of the
employer.
• Fair Work Information Statement – Fair Work Australia must publish the Fair Work Information Statement in the
Gazette. This must contain information on: the NES; modern awards; agreement making under the Act; the right to
freedom of association; and the role of Fair Work Australia. An employer must give each employee the Fair Work
Information Statement before or as soon as practicable after the employee commences employment.

These standards are almost identical to the set of minimum standards that they replaced.

In house counsel as advisor on employment matters

In regards to the obligations and issues facing in-house counsel regarding employment matters, there is little distinction
between advising on employment matters, and advising on matters of law generally.

If a matter is to come before the Industrial Tribunals, it should be assumed as a matter of fact, although not law, that the rules of evidence will be applied. For that reason, it is useful to re-visit some of the issues as to privilege of documents and other communications, and how best to structure such conduct so as to retain confidentiality.

Where in-house lawyers are either the author or recipient of communications or documents the subject of a claim
for privilege it will not be enough for a party to state that the claim is based on legal professional privilege. A party is also like to need to adduce evidence explaining that:

• The in-house lawyer involved is a legal practitioner with a current practising certificate;
• The independence of the in-house lawyer involved in the claim – for example that the duties and interests of the
in-house lawyer to their employer do not influence the professional legal advice given.
• Employers should include in employment contracts a clause acknowledging the independence of the in-house lawyer’s role and implement protocols aiming to achieve this independence. Whilst prima facie such clauses and protocols could be relied on to demonstrate the independence of the in-house lawyer’s position, ultimately a Court is likely to look at the facts of each circumstance as to whether or not the lawyer was providing independent
advice;
• The nature of the documents or communications describing the circumstances in which they were brought into existence; and
• The dominant (or prevailing or most influential) purpose for which the communication was made or the document came into existence was a privileged purpose. This will include an enquiry as to the state of mind of the person who created the document or communication and the person who requested the document or communication
and the prominence of any other purposes for which the document or communication came into existence