As an employer, it is important that you have a professionally drafted Employment Contract for your employees. While there are a number of aspects that are automatically covered by the Fair Work Act or a relevant Modern Award, a number of important areas still need to be addressed and covered in a Contract.

What is automatically covered?

Every full-time and permanent part-time employee in Australia, regardless of their salary, job or whether or not there is a written contract in place, is entitled to the following as set out in the National Employment Standards ("NES"):

Maximum weekly hours;
Requests for flexible working arrangements;
Annual leave;
Personal, carer's and compassionate leave;
Community service leave;
Public holidays; and
Notice of termination and redundancy pay.

State laws also provide for employees to receive long service leave.

These entitlements act as a minimum bench mark and employers and employees cannot agree, whether orally or in writing, to anything that is less than these minimum entitlements.

What about employees covered by an award or enterprise agreement covered employees?

Whether or not your employees who are covered by a Modern Award or Enterprise Agreement employees require written Contracts of Employment will be dependent on your employee, your industry and the contents of any such Modern Award or Enterprise Agreement.

Modern Awards and Enterprise Agreements cover a number of critical areas of the employment relationship, such as wages, leave, penalties and allowances. However, not all such agreements address other critical issues, such as restraints of trade, non-competition and issues regarding trade secrets and confidentiality.

In addition, many employers employ their employees on a salary, inclusive of all of an employee's entitlements under an Award or Enterprise Agreement (such as annual leave loading, overtime and weekend penalty rates). If you want to provide your employees with an all-inclusive salary, you will need to provide for this in a written Contract of Employment.

Depending on your business and the role of your employee, issues can arise if such areas are not addressed in a written contract. In the event of a dispute, each party may have a differing recollection as to what, if anything, was agreed to at the commencement of employment. Having a written contract in place lessens the risk posed by a subsequent dispute or disagreement, as the contract will stand as written proof of the agreement made between you and your employee on such critical issues.

Remember, even if you don't provide an employee with a written agreement at the commencement of their employment, the law still requires employers to provide every new employee with a copy of the Fair Work Information Statement, providing your employees with the required information regarding their rights under the NES.

How can Sharrock Pitman Legal help?

If you are an employer and need advice on Contracts of Employment for your employees, we can assist you. Call Sharrock Pitman Legal today on 1300 205 506 or complete the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

Samuel Ellemor

For further information contact

Mitchell Zadow

Mitchell is the Managing Principal of our law practice.

He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate. For further information, contact Mitchell on his direct line (03) 8561 3318.

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However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Do my employees need Employment Contracts?

What is automatically covered?

What about employees covered by an award or enterprise agreement covered employees?