Australia: Considering Amendments To Employment Contracts To Accommodate Work Choices Reforms

Last Updated: 15 March 2006
Article by Nick Ruskin and Brendan Charles

In addition to considering the impact of the reforms introduced by the Workplace Relations Amendment (Work Choices) Act 2005 (WC Act) employers should consider what changes, if any, they will seek to introduce to employment contracts to accommodate the reforms. This Update summarises the reforms introduced by the WC Act to help employers to consider the changes they wish to implement.

Probationary period

One reform is the increase of the qualifying period from three to six months. The effect of this is that during the first six months of employment, or a shorter or longer period (but only if it is ‘reasonable’) as may be agreed in writing between the employer and the employee before employment commences, an employee cannot make an unfair dismissal claim to the Australian Industrial Relations Commission.

In line with this, employers may decide to increase the probationary period to six months. Any decision to end the probationary period within the six months will still be free from the unfair dismissal jurisdiction if the qualifying period has not been reduced under the contract. However, the contract should provide that the probationary period can be ended at any time during its operation by the giving of a short period of notice (or payment in lieu).

Hours of work

Under section 91C of the WC Act, an employee must not be required or requested by his or her employer to work more than 38 hours per week but may require or request the employee to work reasonable additional hours.

Section 91C also sets out a non-exhaustive list of the factors to be taken into account in determining whether additional hours that an employee is required or requested to work are reasonable. These factors will need to be considered on a case by case basis. However, an appropriately worded clause in an employee’s employment contract will assist in this regard. The clause should set out the requirement, noting that remuneration has been set at a level to accommodate the fact the employee may be required or requested to work these additional hours and, if possible, reasons why they may be asked.

Further, an employer may wish to take advantage of the averaging of hours provisions under which an employee may be required to work an average of 38 hours per week over a period that is no longer than 12 months, or a shorter period that may be agreed between the employer and the employee.

Any averaging arrangement would need to be suitable for your workplace and the manner in which an employee is required to work. However, a properly implemented averaging arrangement can assist an employer to meet the ebbs and flows of workflow and demand, which may be of benefit to their business. Any averaging arrangements must take into account any provisions in relation to hours of work, overtime and penalties that may be found in an applicable award, certified agreement or AWA.

Public holidays

Under section 170AF of the WC Act, an employee is entitled to a day off on a public holiday and may refuse a request to work on a public holiday if they have reasonable grounds for doing so. There are a number of factors to consider to determine the reasonableness of the employee’s refusal. One of those is whether the employment contract contemplates that the employer might require the employee to work on public holidays, or particular public holidays.

The fact of an employment contract setting out such a requirement is not determinative (as there are a number of other matters set out in the applicable section), but providing for it in the contract will assist an employer if the reasonableness of an employee’s refusal becomes an issue in the future.

Documentary evidence for sick leave

Section 93N of the WC Act enables an employer to require an employee to provide documentary evidence, as soon as reasonably practicable, to verify any absence on sick leave.

Employers may already have this requirement in place in a policy, employment contract, certified agreement or AWA, discussing the circumstances in which a medical certificate, or other documentary evidence, of the need to take sick leave must be provided.

Employers may decide that they are satisfied with their existing arrangements. However, this provision in the WC Act may prompt employers to alter their requirements to reflect the new provisions introduced by the WC Act.

Cashing out annual leave

A current misconception is that the cashing out of annual leave provisions in section 93E of the WC Act will enable employers and employees to generally agree (whether under their employment contract or otherwise), to the cashing out of annual leave. In reality, this section only enables an employee to agree to forego an entitlement to take an amount of annual leave if an appropriate provision is included in a workplace agreement that is binding on the employee and employer. A workplace agreement is defined in the WC Act to include an AWA and the various forms of collective agreements that may be entered into between employers, employees or unions under the WC Act. The definition does not include an employment contract.

Accordingly, provisions in a employment contract or other agreement between an employer and employee will not result in an employee forgoing his or her entitlement to take annual leave for the period of the accrual that is paid out by the employer.

What this means in practice is that the employee is still entitled to take the leave, albeit unpaid, unless there has been an increase in the employee’s pay since the date of the payout. If such an increase has occurred, the employee would be entitled to be paid the difference between the amount paid out and the increased amount the employee would have received for the period if it was taken as paid leave. This would also apply if the employee’s accrued entitlement is paid out on termination of employment.

The Act is now expected to commence in late March, at the time the all important regulations are released.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.