How to guide – completing the contract templates – for ORIC corporations covered by the Western Australian industrial relations system
Business manager / Bookkeeper / Administrative assistant
Permanent, Part-time Employment

Western Australia

November 2010

This document has been prepared solely for the use of not-for-profit corporations registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (CATSI Act). Its application in any particular case will depend upon the facts of that case. In every case, due care will need to be taken by a corporation registered under the CATSI Act in assessing the suitability of its application. The Australian Government Solicitor and ORIC cannot take any responsibility for this assessment.
This document may only be reproduced or distributed for use in the drafting of a contract for a not-for-profit corporation registered under the CATSI Act. All other rights are reserved.

Before you start to fill in the contract template note the following points: 

•	The template only works for corporations employing employees in Western Australia who are covered by the Western Australian industrial relations system. The template will produce the wrong legal outcomes for anywhere other than Western Australia so don’t use it for employment in any other location.
•	The template only works for corporations in Western Australia that are not covered by the federal industrial relations system.  
•	There are two possibilities here. The first is if your corporation is a trading or financial corporation, it will be covered by the federal industrial relations system (and will not be covered by the Western Australian system). If you have any doubt, look at the Western Australian Department of Commerce website at 
•	http://www.commerce.wa.gov.au/LabourRelations/Content/Employers/About_IR_in_WA/Western_Australian_industrial_.html
If you are still in doubt you should seek legal advice. 
The second possibility is that although your corporation is not covered by the new federal industrial relations system, it may still be covered by an old federal award. If it is covered by an old federal award, that award will continue to run until 26 March 2011. After this date the award will cease to operate, and your corporation will become subject to Western Australian state awards. One way to check this is to call the Commonwealth’s Fair Work Infoline on 13 13 94. Give them details of the employment and seek advice about whether an old federal award still applies. Generally, they should be able to advise you on this.
•	The template assumes that the employment is permanent – that is, it is   not for a fixed period but is meant to continue indefinitely. If the employment is intended for a fixed period, a slightly different template will be needed.
•	There are different contract templates for full-time and part-time   employment. Make sure you are using the right one.
•	The template assumes that your corporation does not have any form of industrial agreement operating in relation to the corporation. If an industrial agreement is currently operating in the corporation, and if it applies to the job you are filling, the terms and conditions of employment for the new employee will have to be consistent with the terms of that agreement. In this event the template will almost certainly be wrong.  
•	The templates have been drafted on the basis that one of two Western Australian state awards applies to the particular employment: either the Clerks’ (Wholesale & Retail Establishments) Award or the Clerks (Commercial, Social and Professional Services) Award. You need to make sure that one of these awards does in fact apply to the employment.
The Western Australian Department of Commerce website can help you to confirm this. 
HUhttp://www.commerce.wa.gov.au/LabourRelations/Content/Employers/Pay_rates_leave_and_conditions/Pay_rates_and_award_summaries.htmlU
If you need more help, you can call Wageline in Western Australia on 1300 655 266.
0BWhat is in the contract template?

The template consists of three parts.
1. The first part is a contract of employment.  This part needs to be filled in by the corporation in various places and signed and dated by both the employer and the new employee.
2. The second part is Attachment 1 to the contact – the job description. The corporation needs decide what goes into the job description.
3. The third part is Attachment 2 to the contract – a summary of the Western Australian Minimum Conditions of Employment Act 1993 together with a summary of the main terms and conditions set out in the relevant award. Here the corporation needs to make sure that the correct summary is attached: that is, the one that relates to the relevant award (as opposed to another award that does not apply to the employment).
1BFilling in the contract template

Clause 1: You need to fill in the name of your corporation. This is subsequently defined in the contract as ‘the corporation’ so you don’t need to use the specific name of your corporation again until you reach the signing page.
The document is just an offer, not a contract, until it is signed.
Clause 2: You need to fill in the commencement date for the employment. This is the date you expect the employee to begin work.
Clause 3 refers to Attachment 1 as setting out the job description. This describes what the employee will be doing. As noted above, the job description should be completed by the corporation. 
Attachment 1 needs to be labelled ‘Attachment 1’.
Clause 4 of the contract deals with the period of probation. There are a few issues to consider here.  
•	The template sets the period of probation at three months but it can be a longer or a shorter period, depending on what the corporation needs. Generally speaking, the more senior the job and the more responsibility it carries, the longer the period of probation. Corporations may choose a period of six months or even 12 months. Any longer than this is quite unusual.  
•	Once you have decided on a period of probation, for example, three months, put into the contract the end date of the probation (the date of commencement plus three months, minus one day). So if three months of probation began on 17 August 2010, it would end at the end of 16 November 2010. 
•	Note that if you make the period of probation 12 months, and you terminate the employee’s employment on the very last day of that period, you would need to give the employee two weeks’ notice of termination, not one week’s notice as is specified in the template. If the employee’s employment is terminated with less than one year of service, they only need to be given one week’s notice of termination.
•	The contract specifies two things that have to be satisfactory for the employee to “pass” their probation. These are the employee’s conduct and their work performance. The corporation may wish to specify additional elements of probation in the contract.  For example, you may wish to add “or attendance” to the last sentence of this clause.
Clause 5.1: You will need to make sure that the award named here is the correct award for your employment. The final point of the preamble (page 1) tells you how to identify your award. 
The template is set up on the basis that one of two Western Australian state awards applies to the employment – either the Clerks’ (Wholesale & Retail Establishments) Award or the Clerks (Commercial, Social and Professional Services) Award. Make sure that one of these awards applies to the employment and specify which one in this clause of the contract.
Clause 5.1 includes a link to the web page that lists and provides links to the Western Australian State awards, as well as a link to a summary of the Western Australian Minimum Conditions of Employment Act 1993 and a link to the full text of that Act. 
You need to have a copy of the relevant award available in the employee’s workplace.
Clause 5.2 is possibly the most difficult for a corporation. You will need to work out the classification of the employee in terms of the award that applies. This means you need to check the classification clause of the relevant award, and see which classification most closely matches the duties and responsibilities of the position. You will need to specify that classification in the contract. 
As noted above there is help available to work out the right classification. The best place to look is at 
HUhttp://www.commerce.wa.gov.au/LabourRelations/Content/Employers/Pay_rates_leave_and_conditions/Pay_rates_and_award_summaries.htmlU
If this does not answer the question you should call Wageline in Western Australia on 1300 655 266.
Next, you will need to specify the pay point within that classification, and the corresponding pay rate in the award for that pay point. Generally speaking, you would specify the first pay point – the lowest pay point – in the classification. Make sure you get this pay rate figure from an up-to-date version of the award – if you use the electronic link in the contract, it should always take you to the latest version of the award.
You should be aware that the award rate is the minimum you can pay. The award rate is likely to be increased once every 12 months but the corporation should monitor these award pay rates to make sure it is always paying the right amount to employees. 
The template provides for you to include the full-time pay rate for a part-time employee. The template for part-time employment says, ‘You will be paid on a pro-rata basis …’ so in order to pay the employee the right amount, the corporation must work out the weekly pay rate, as a proportion of the full-time weekly rate, based on what proportion of a 38 hour week the employee’s ordinary hours are. So if the part-time employee is working a 30 hour week, their pay should be 30/38 of the full-time weekly rate.
Alternatively, the corporation may choose to pay the new employee at a rate which is above the award rate. In order to do this, the corporation must not only specify a higher amount than the award rate but must also keep an eye on rate increases within the relevant award.
If the corporation is paying at the award rate, there is no need for a salary increase clause. This is taken care of by the award, although it will still be up to the corporation to make sure it is paying the right rate. 
If the corporation chooses to pay a rate above the award rate, it makes sense to include a pay increase clause in the contract, such as, ‘The corporation will review the employee’s rate of pay on [insert date] each year, and may increase it from the first pay period after that date.’
Clause 5.3 says that the employment is permanent – that is, it does not have any specified end date – and that it is part-time.
In the second part of this clause the corporation will need to specify the ordinary hours of work that the employee will do. The ordinary hours of work for the part-time employee must be less than 38 hours if the Clerks’ (Wholesale & Retail Establishments) Award applies to the employment, or 32 hours or less if the Clerks (Commercial, Social and Professional Services) Award applies.
The signing page of the contract: Affix the Common Seal of the corporation to the contract in the presence of two authorised officers of the corporation who will sign the contract. If the corporation does not have a Common Seal – some do not – you can use the second form of words supplied in the template. Either way, one of the two forms of words needs to be deleted.
The contract should be signed by the new employee and by a witness to the employee’s signature. This does not all have to happen at the same time – each side can do its part separately.
Attachment 1 to the contract is the job description. This is discussed above in the notes to clause 3.
This attachment should be labelled ‘Attachment 1’.
Attachment 2 to the contract is the summary of the Western Australian Minimum Conditions of Employment Act 1993 and the relevant award. Having worked out which of the two likely awards applies to your employment, you need to attach the correct summary. Please note that these summaries will not be correct if some other award applies to the employment.

This attachment should be labelled ‘Attachment 2’.

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