Ensuring the conditions of employment and the expectations of the business are clearly and appropriately expressed is an important area of employment compliance, yet it is an area with which many businesses struggle. ACAPMA explores the crucial area of engagement documents.
Engagement documents can have a variety of names, including Letter of Offer or Contract of Employment. What is important is that the engagement document clearly communicates the required information to the new employee about their role and how they will work, as well as outlining the expectations of the business and the likely outcome of an employee failing to meet those expectations.
Engagement documents should clearly communicate key elements of the employment relationship, including:
- The business the employee will be working for.
- The work location or locations.
- The start date.
- Any probation period that will apply and the notice required by either party (employer or employee) to terminate the employment relationship within the probation period. Note: depending on the employment instrument, it may be useful to stipulate that any notice period directed by the employer may be, at the discretion of the employer or worker, paid in lieu.
- The notice that will be required by either party to terminate the employment relationship outside the probation period. Note: depending on the employment instrument, it may be useful to stipulate that any notice period directed by the employer may be, at the discretion of the employer or worker, paid in lieu.
As well as the general inclusions, engagement documents should take care to communicate the following specifics to meet statutory requirements:
- The employment instrument: engagement documents should clearly communicate the instrument that the employment relationship will be governed by. This is the Award that covers the work in most cases, but could also be a registered Enterprise or Collective Agreement.
- The classification of the employee under the employment instrument: engagement documents should clearly communicate the classification that the business has determined will apply to the employee’s work under the employment instrument.
- The provision of the Fair Work Information Statement: it is a requirement under the law that all staff be provided with a copy of the Fair Work Information Statement; it is helpful in proving that this requirement has been met to include reference to the provision of a copy of the Fair Work Information Statement in the engagement documents.
- Guaranteed work: it is a requirement for all permanent and permanent part-time staff to communicate in writing the days that they will work and the start and finish times of shifts. These amount to the guaranteed hours. When communicating guaranteed hours for casuals, this section of the engagement document should reflect that casuals are engaged and employed as needed by the hour and as such no guaranteed hours apply.
It is incumbent on employers to be able to prove that they have communicated all these elements under the law, and failure to be able to demonstrate that these elements were communicated attracts severe penalties.
It is optional to include within the engagement documents, reference to, and a copy of:
- Business policies: while this element is optional, it is recommended that on commencement is an excellent time to outline to all new staff the expectations of the business and what the likely outcomes are for breaches or failure to meet those expectations. The provision of coherent, well-formed business policies added as an attachment to the engagement documents allows for this communication.
- Position description: while this element is optional, it is recommended that on commencement new staff be provided with a detailed and comprehensive position description that outlines tasks, physical requirements, skill requirements and reporting frameworks.
The engagement documents should be provided to the new employee before they accept the role, and ideally their acceptance of the role should be indicated by the return of a signed copy of the engagement document.
The employee should be given a copy of the document that they keep and the signed copy should be retained by the business as a key document in the employee’s employment file.
What about current staff documents?
For businesses that are concerned that their current engagement documents may have missed some of these requirements, it is important to address the gaps swiftly. It is suggested that a Confirmation of Employment Pack, which provides all the information that would be provided in a complete engagement pack, be circulated to all staff to ensure that staff are provided with the information required under the law, and the business is in a position to demonstrate that this communication has happened.
As with all things in the compliance space, discovering a gap, and taking steps to remedy it, is infinitely preferable to turning a blind eye or crossing your fingers and hoping there will not be an issue.
Here to help
ACAPMA members are reminded that the ACAPMA Employment Professionals are available to help with engagement documents. For more information, call 1300 160 270.
ACAPMA membership costs $770 per year for a single site. Sites gain HR and IR advice, support and representation, as well as a raft of other benefits and discounts.
This is an edited version of an article originally circulated by ACAPMA on August 4, 2017.