precedent suitability - aboriginal...
TRANSCRIPT
ISSUES TO CONSIDER
1. PRECEDENT SUITABILITY
This precedent is an employment contract for a senior executive level employee who may also have director responsibilities.
The precedent assumes that the employer will generally be a corporation as regulated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act). If the employer is not such a corporation, you may need to modify some provisions in this document, given that some of the obligations are specific to such corporations.
You should carefully review this precedent to ensure that it fits your specific requirements and should seek additional advice as required.
The APONT Aboriginal Governance and Management Program may be able to assist you in sourcing further advice. You can contact the Program Manager on:
Telephone: 08 8959 1701 Email: [email protected]
2. ATTACHMENTS TO THE EMPLOYMENT CONTRACT
You may need to provide the Executive with the following attachments:
Fair Work Information Statement – From 1 January 2010, employers were required to provide a Fair Work Information Statement to employees (s 125 FW Act). This Statement has been prepared by the Fair Work Act Ombudsman;
Standard Choice Form for superannuation – See http://www.ato.gov.au;
Tax file number declaration form; and
Other documents particular to the Organisation or Executive.
3. USING THIS PRECEDENT
Clauses that are tagged as Opt[ ] are optional clauses. You are not required to include an optional clause. You should carefully consider whether you require an optional clause before you elect to include that particular clause. When selecting optional clauses, take care to ensure that you select the entirety of the clause between the blue colour coded brackets and then delete the actual brackets and the word "Opt".
Clauses that are tagged as Alt[ ] are alternative clauses. You will need to select the most appropriate alternative clause depending on which alternative best suits your particular organisation's circumstances. When selecting an alternative clause, take care to ensure that you select the entirety of that alternative between the yellow colour coded brackets and then delete the actual brackets, the word "Alt", the other alternatives and any associated bracketed explanatory notes.
In addition, there are two alternative remuneration clauses colour coded green or red. After you select the most appropriate alternative remuneration clause, you should: check to ensure that you have included all the relevant parts within the selected alternative clause; delete the word “Alt” and the adjacent number 1 or 2, delete the highlighted explanatory notes, other associated bracketed explanatory notes and delete the other alternative remuneration clause in full; and remove the colouring.
Clauses that are tagged as Edt[ ] in purple allow you to edit the default information set for that clause, then delete the brackets, the word “Edt” and any highlighted explanatory notes.
4. CLAUSE 2.3 – EMPLOYMENT
Clause 2.3 includes alternative clauses for ongoing employment, maximum term employment and specified task employment.
You will need to select the appropriate alternative clause depending on the circumstances of the Executive's employment with the Organisation.
5. CLAUSE 7.1 - 7.5 / 7.6 - 7.9 – FIXED REMUNERATION
You will need to consider and amend, as appropriate, how the remuneration of the Executive will be structured.
Alternative 1 – Fixed Remuneration Package (Clauses 7.1 - 7.5) Alternative 1 specifies the Fixed Remuneration Package as a global amount.
Alternative 2 – Individual elements of remuneration (Clauses 7.6 - 7.9)Alternative 2 of the Fixed Remuneration clause sets out the individual elements of the "fixed" components of the remuneration without using a "remuneration package" approach.
In both Alternative 1 & Alternative 2, there are some optional and alternative clauses which should be inserted as appropriate to the Executive's particular circumstances.
Clause 7.1 – Alt 1/ Clause 7.6 – Alt 2 – Superannuation provisions
This precedent assumes that superannuation contributions will be made to an accumulation fund only and not to a defined benefit fund. If contributions are to be made to a defined benefit fund, please seek advice from a lawyer.
6. CLAUSE 10 – ANNUAL AND OTHER LEAVE
The Fair Work Act 2009 (Cth) deals with various leave matters.
You may need to modify these provisions if you want to provide more generous leave entitlements than required under the applicable legislation, or where you want to impose particular conditions on the taking of different types of leave.
7. CLAUSE 13 – WARRANTIES (OPTIONAL)
This is an optional clause.
You may wish to include these warranties in circumstances where the Organisation requires the Executive to hold certain qualifications or professional memberships or registrations.
8. CLAUSE 14 – TERMINATION OF EMPLOYMENT
Please note that, in the event of the Executive's termination of employment, you will need to ensure that any notice given by the Organisation is compliant with the terms of the Fair Work Act 2009 in respect of the notice requirements under the National Employment Standards (see section 117).
9. CLAUSE 17 – DEBRIEFING AND ASSISTANCE
You may want to include this clause in circumstances where the Organisation may require the Executive to provide debriefing and assistance to the Organisation in the event of a resignation or termination of the Executive's employment.
10. EXECUTION CLAUSE
You will need to confirm that the execution clause is appropriate and complaint with the internal governance rules of the Organisation with respect to the execution of documents by the Organisation.
11. SCHEDULE 1 – SUMMARY REMUNERATION SCHEDULE
Depending on the election of alternatives at clause 7 above you will need to amend the summary remuneration schedule as appropriate.
12. SCHEDULE 2 – JOB DESCRIPTION
You will need to insert a job description of the position that the Executive will be employed in and, where that job description is varied, re-insert a varied job description that is consistent with clause 3.1.
[Date]
Senior Executive Employment Contract
[Name of organisation]
[Name of senior executive]
[year]
CONTENTS
CLAUSE PAGE
1. INTERPRETATION.....................................................................................................................71.1 Definitions..................................................................................................................71.2 Rules for interpreting this document..........................................................................8
2. ENGAGEMENT..........................................................................................................................92.1 Appointment...............................................................................................................92.2 Role............................................................................................................................92.3 Employment period....................................................................................................92.4 Employment status...................................................................................................102.5 Location....................................................................................................................102.6 Opt[Probationary period...........................................................................................10
3. DUTIES AND RESPONSIBILITIES.............................................................................................103.1 Performance of duties..............................................................................................103.2 No obligation to provide work...................................................................................103.3 Reporting..................................................................................................................113.4 Provision of information and compliance with directions.........................................113.5 Policies and procedures............................................................................................11
4. CONFLICTS OF INTEREST.......................................................................................................114.1 No conflict of interest or interest in other organisations..........................................114.2 Gifts..........................................................................................................................114.3 No additional remuneration for working as a director..............................................11
5. HOURS OF WORK..................................................................................................................115.1 Hours necessary to fulfil requirements of position...................................................115.2 Compensation for all hours worked..........................................................................12
6. PERFORMANCE REVIEWS.......................................................................................................127. FIXED REMUNERATION..........................................................................................................12
7.1 Alt1[Fixed Remuneration Package............................................................................127.2 Payment of Fixed Remuneration Package................................................................127.3 Components of Fixed Remuneration Package..........................................................127.4 Opt[Alteration of Fixed Remuneration Package components...................................127.5 Taxes........................................................................................................................137.6 Alt2[Fixed Remuneration..........................................................................................137.7 Payment of Fixed Remuneration..............................................................................137.8 Alteration of Fixed Remuneration components........................................................137.9 Taxes........................................................................................................................14
8. OPT[OTHER BENEFITS...........................................................................................................148.1 Opt[Motor vehicle.....................................................................................................148.2 Opt[Travel.................................................................................................................148.3 Opt[Telephone..........................................................................................................148.4 Opt[Membership of professional associations..........................................................148.5 Opt[Other expenses.................................................................................................148.6 Opt[Relocation and accommodation costs...............................................................14
9. REMUNERATION AND BENEFITS REVIEWS.............................................................................159.1 Review......................................................................................................................159.2 No obligation............................................................................................................15
10. ANNUAL AND OTHER LEAVE..................................................................................................1510.1 Annual leave.............................................................................................................15
10.2 Public holidays..........................................................................................................1510.3 Personal/Carer's leave..............................................................................................1510.4 Long service leave....................................................................................................1510.5 Parental leave...........................................................................................................1510.6 Other leave...............................................................................................................15
11. CONFIDENTIAL INFORMATION...............................................................................................1511.1 Ownership of Confidential Information.....................................................................1511.2 Proper use and security of Confidential Information................................................1611.3 Exceptions................................................................................................................1611.4 Notifying the Organisation........................................................................................1611.5 Continuation.............................................................................................................16
12. INTELLECTUAL PROPERTY AND MORAL RIGHTS....................................................................1612.1 Disclose all Materials................................................................................................1612.2 Intellectual Property Rights in Materials...................................................................1712.3 No Intellectual Property rights infringement.............................................................1712.4 Employee Moral Rights.............................................................................................1712.5 Effect to clause.........................................................................................................1712.6 Continuation.............................................................................................................18
13. OPT[WARRANTIES.................................................................................................................1813.1 Executive warranties................................................................................................1813.2 Acknowledgement....................................................................................................18
14. TERMINATION OF EMPLOYMENT............................................................................................1814.1 Immediate termination by the Organisation.............................................................1814.2 Termination by the Organisation with notice............................................................1914.3 Resignation by the Executive...................................................................................1914.4 Termination payments..............................................................................................1914.5 No further claims......................................................................................................19
15. RETURN OF PROPERTY..........................................................................................................1915.1 Return of property....................................................................................................1915.2 Property....................................................................................................................20
16. RESIGNATION FROM OFFICES................................................................................................2016.1 Resignation...............................................................................................................2016.2 Execution of documents...........................................................................................20
17. OPT[DEBRIEFING AND ASSISTANCE......................................................................................2018. DIRECTION TO PERFORM DIFFERENT DUTIES OR STAND DOWN...........................................20
18.1 Direction not to attend work or to perform different duties.....................................2019. ACKNOWLEDGEMENTS BY THE EMPLOYEE............................................................................2120. AMENDMENT.........................................................................................................................2121. GENERAL...............................................................................................................................21
21.1 Governing Law..........................................................................................................2121.2 Giving effect to this document.................................................................................2121.3 Operation of this document......................................................................................2121.4 Counterparts.............................................................................................................21
Schedule1 Summary remuneration schedule.........................................................................................20
THIS AGREEMENT is made on [year]
BETWEEN:
(1) [Organisation name] Alt[[ICN / ABN / ACN]] (the Organisation)
(2) [Employee's full name] (the Executive)
THE PARTIES AGREE AS FOLLOWS:
1. INTERPRETATION
1.1 Definitions
The following definitions apply in this document.
Board means the board of directors of the Organisation.
Opt[Chairperson means the chairperson of the Board.]
Confidential Information means all information (whether or not it is described as confidential and whenever acquired) in any form or medium concerning any past, present or future business, operations or affairs of the Organisation, or of any customer of the Organisation but excludes information that the Executive can establish:
(a) is known by or is in the Executive's possession or control other than through a breach of this document and is not subject to any obligation of confidence; or
(b) is in the public domain other than by a breach of this document or any obligations of confidence.
Employee Moral Rights means Moral Rights of the Executive in all copyright works, films and performances made or to be made by the Executive in the course of the Executive's employment.
Existing Materials means works, ideas, concepts, designs, inventions, developments, improvements, systems or other material or information, created, made or discovered by the Executive (either alone or with others) prior to or outside the scope of the Executive's employment, that the Executive uses or supplies in the course of the Executive's employment.
[Alternative – Definition – Fixed Remuneration/Fixed Remuneration Package – Choose the appropriate term, based on whether you select Alternative 1 or Alternative 2 in clause .]
Alt[Fixed Remuneration/Fixed Remuneration Package] means the amount specified in clause [/].
Intellectual Property Rights means all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.
These rights include:
(a) all rights in all applications to register these rights;
(b) all renewals and extensions of these rights; and
(c) all rights in the nature of these rights, such as Moral Rights.
[Position title] means the [position title], typically Chairperson, of the Organisation as appointed from time to time and includes any person nominated by the [position title].
Materials means works, ideas, concepts, designs, inventions, developments, improvements, systems or other material or information, created, made or discovered by the Executive (either alone or with others and whether before or after the date of this document):
(a) in the course of the Executive's employment;
(b) as a result of using the resources (including the Confidential Information and Intellectual Property Rights) of the Organisation; or
(c) in any way relating to any business of the Organisation.
Minimum SGC Contribution means the amount that the Organisation must contribute to a Superannuation Arrangement on behalf of the Executive to avoid being liable for the superannuation guarantee charge under the Superannuation Guarantee Legislation.
Moral Rights means:
(a) rights of integrity of authorship or performership;
(b) rights of attribution of authorship or performership;
(c) rights not to have authorship or performership falsely attributed,
conferred by the Copyright Act 1968 (Cth); and
(d) rights of a similar nature that exist, or may come to exist, anywhere in the world.
Organisation’s policy means the Organisation’s policy as applicable.
Superannuation Arrangement means a superannuation fund or RSA (Retirement Savings Account) (as those expressions are defined in the Superannuation Guarantee Legislation) in respect of which contributions made by the Organisation reduce the Organisation's potential liability for the superannuation guarantee charge under the Superannuation Guarantee Legislation.
Superannuation Guarantee Legislation means the Superannuation Guarantee Charge Act 1992 (Cth) and the Superannuation Guarantee (Administration) Act 1992 (Cth).
1.2 Rules for interpreting this document
Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this document, except where the context makes it clear that a rule is not intended to apply.
(a) A reference to:
(i) a legislative provision or legislation (including subordinate legislation) is to that provision or legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(ii) a policy, document (including this document) or agreement, or a provision of a policy, document (including this document) or agreement, is to that policy, document, agreement or provision as amended, supplemented, replaced or novated;
(iii) a contravention or breach of any provision in this document includes any warranty of a party not being complete, true or accurate or a failure to meet any pre-employment condition;
(iv) a party to this document or to any other document or agreement includes a successor in title, permitted substitute or a permitted assign of that party;
(v) a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and
(vi) anything (including a right, obligation or concept) includes each part of it.
(b) A singular word includes the plural, and vice versa.
(c) A word which suggests one gender includes the other genders.
(d) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(e) If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing.
(f) The word agreement includes an undertaking or other binding arrangement or understanding, whether or not in writing.
(g) The expression this document includes the agreement, arrangement, understanding or transaction recorded in this document.
2. ENGAGEMENT
2.1 Appointment
The Organisation employs the Executive on the terms set out in this document.
2.2 Role
(a) The Executive is initially employed in the role of [job title], and may subsequently be employed in other roles as determined by the Organisation and which are consistent with the Executive's job description as set out in .
(b) Unless otherwise agreed by the parties, the terms and conditions in this document will continue to apply to the Executive in respect of any role that the Executive holds.
2.3 Employment period
[Alternative 1 – Clause – Ongoing employment.]
Alt1[The Executive's employment:
(a) commences on [date] or such other date as agreed between the parties; and
(b) continues until the employment is terminated.]
[Alternative 2 – Clause – Maximum term employment.]
Alt2[The Executive's employment:
(c) commences on [date] or such other date as agreed between the parties; and
(d) ends on [date], unless the employment is terminated earlier.]
[Alternative 3 – Clause – Specified task employment.]
Alt3[The Executive's employment:
(e) commences on [date] or such other date as agreed between the parties; and
(f) ends on completion of [describe project or task or other reason for fulfulling role, eg, maternity leave placement] (which will be on the date notified to the Executive by the Organisation), unless the employment is terminated earlier.]
2.4 Employment status
The Executive is employed on a Alt[full-time/part-time] basis.
2.5 Location
(a) The Executive will initially be based in [specify].
(b) The Organisation may require the Executive to travel to other locations (including interstate and overseas).
2.6 Opt[Probationary period
(a) The Executive's employment is subject to a probationary period of Edt[[three–six] ] months from the Executive's commencement date, Opt[ending on [date] ].
(b) Opt[The Organisation may extend the probationary period if the Executive is absent from work during the period for [number] or more days, or for reasons including further assessing the Executive's performance or suitability for the role. Any such extension is subject to the total probationary period not exceeding Edt[[six] ] months.]
During the probationary period, either party may terminate the employment by providing to the other party [number] week's written notice, or in the case of the Organisation, by payment in lieu of notice or a combination of notice and payment in lieu of notice.]
3. DUTIES AND RESPONSIBILITIES
3.1 Performance of duties
The Executive must diligently perform the duties and responsibilities that the Organisation has assigned to the [job title] in a job description. The Organisation may subsequently vary these duties and responsibilities at any time by agreement with the Executive.
3.2 No obligation to provide work
For the purposes of clause , the Organisation is not obliged to provide the Executive with work during any part of the Executive's employment.
3.3 Reporting
The Executive will report directly to the [Position Title], or such other person as nominated by the Organisation from time to time.
3.4 Provision of information and compliance with directions
The Executive must:
(a) comply with all lawful orders and instructions given by the Organisation; and
(b) provide full and prompt information to the [Position Title] (or such other person as nominated by the Organisation from time to time) regarding the conduct of the business of the Organisation including any material issue within the Executive's knowledge affecting the Organisation.
3.5 Policies and procedures
(a) The Executive must comply with all policies of the Organisation.
(b) Such policies operate independently of this document and are not incorporated into this document).
4. CONFLICTS OF INTEREST
4.1 No conflict of interest or interest in other organisations
Except with the prior written consent of the Board, the Executive must not:
(a) have any direct or indirect financial interest in any entity or body that would be in conflict with the duties or responsibilities of the Executive;
(b) hold any directorship or other office or accept any appointment to any other entity or body;
(c) undertake any other trade, business or profession; or
(d) become an employee, agent or contractor of another person.
4.2 Gifts
Except with the written consent of the [Position Title], the Executive must not accept any gift of more than token value or favour from any person with whom the Executive has or has had dealings with on behalf of the Organisation.
4.3 No additional remuneration for working as a director
The Executive is not entitled to any additional remuneration for acting as a director of the Organisation (and must account for all amounts arising directly or indirectly from the performance of duties associated with that particular office). Any fees otherwise payable are included in the Executive's remuneration as described in clause of this document.
5. HOURS OF WORK
5.1 Hours necessary to fulfil requirements of position
Although the Organisation's usual office hours are between [time] to [time] Monday to Friday, business is frequently conducted outside these hours. The Executive must work the hours which are reasonably necessary to fulfil the requirements of the Executive's position, or as reasonably required by the Organisation.
5.2 Compensation for all hours worked
The Executive's remuneration includes compensation for all hours the Executive is required to work.
6. PERFORMANCE REVIEWS
The Executive must participate fully in performance reviews as required by the Organisation.
7. FIXED REMUNERATION
[Alternative 1 – Clauses – – Fixed Remuneration Package. Please elect either Alternative 1 or Alternative 2. You will need to delete the alternative that you are not using in this precedent.]
7.1 Alt1[Fixed Remuneration Package
The Executive's annual Fixed Remuneration Package is set out in item 1 of and includes a superannuation contribution Alt[equal to/that at least satisfies] the Minimum SGC Contribution.
7.2 Payment of Fixed Remuneration Package
The Organisation will pay the cash component of the Executive's Fixed Remuneration Package in equal Alt[weekly/monthly/fortnightly] instalments directly into a financial institution account nominated by the Executive, and acceptable to the Organisation.
7.3 Components of Fixed Remuneration Package
(a) Subject to the approval of the Organisation, Opt[and in accordance with the Organisation's policy,] the Executive may elect to take the Fixed Remuneration Package as a combination of base salary, superannuation contributions and non-cash benefits.
(b) Non-cash benefits may include Opt[a motor vehicle and other] benefits Opt[in accordance with the Organisation's policy].
7.4 Opt[Alteration of Fixed Remuneration Package components
At the request of the Executive, or as determined by the Organisation, the Organisation may alter the components of the Executive's Fixed Remuneration Package, subject to the following conditions:
(a) The Executive agrees with the altered components.
(b) The cost to the Organisation of providing the Fixed Remuneration Package must remain the same Opt[; and]
(c) The superannuation component of the Executive's Fixed Remuneration must not be less than the Minimum SGC Contribution or greater than the amount approved by the Organisation Opt[; and]
(d) Opt[Any alteration must be in accordance with the Organisation's policy.]
7.5 Taxes
The Organisation may deduct or withhold from the Executive's Fixed Remuneration Package, an amount equal to any fringe benefits tax or other tax payable, or required to be withheld, by the Organisation (other than payroll tax) on any component of the Executive's Fixed Remuneration Package.]
[Alternative 2 – Clauses – – Fixed Remuneration. Please elect either Alterative 1 or Alternative 2. You will need to delete the alternative that you are not using in this precedent.]
7.6 Alt2[Fixed Remuneration
[Alternative 2 – Clauses – – Salary + super + allowances + specified monetary benefits option. Please note that these clauses will be renumbered if you delete Alternative 1.]
The Executive's annual Fixed Remuneration is set out in item 1 of and comprises:
(a) a base salary payable in equal Alt[weekly/monthly/fortnightly] instalments; Opt[and]
[Clause – You may choose to include the optional sentences that refer to the $ amount of super and variation of superannuation contributions, and superannuation choice of fund legislation. You may need to seek advice from a superannuation lawyer about employees who are not eligible for choice of superannuation fund.]
(b) a superannuation contribution Alt[equal to/that at least satisfies] the Minimum SGC Contribution. Opt[The superannuation contribution is currently the amount specified in item 1 of , but it may vary depending on factors including the Executive's actual earnings, changes to the Minimum SGC Contribution Alt[,/and] applicable legislation Opt[ and the Organisation's policy].] Opt[The Executive may nominate a particular complying fund into which contributions will be made by completing Alt[a/the attached] Standard Choice Form. If the Executive does not nominate a particular complying fund, contributions will be made to [name of Employer's fund]. ] Opt[; and]
[Optional – Clause – Motor vehicle allowance. Alternatively, include clause for provision of motor vehicle.]
(c) Opt[a motor vehicle allowance] Opt[; and]
[Optional – Clause – Specify any additional components which are included in the Executive's Fixed Remuneration.]
(d) Opt[[include any additional components with a specified monetary value] ].
7.7 Payment of Fixed Remuneration
The Organisation will pay the Executive's base salary Opt[and any applicable allowances] directly into a financial institution account nominated by the Executive, and acceptable to the Organisation.
7.8 Alteration of Fixed Remuneration components
At the request of the Executive, or as determined by the Organisation, the Organisation may alter the components of the Executive's Fixed Remuneration, subject to the following conditions:
(a) The Executive agrees with the altered components;
(b) The cost to the Organisation of providing the Fixed Remuneration must remain the same Opt[; and]
(c) The superannuation component of the Executive's Fixed Remuneration must not be less than the Minimum SGC Contribution or greater than the amount approved by the Organisation Opt[; and].
(d) Opt[Any alteration must be in accordance with the Organisation's policy.]
7.9 Taxes
The Organisation may deduct or withhold from the Executive's Fixed Remuneration, an amount equal to any fringe benefits tax or other tax payable, or required to be withheld, by the Organisation (other than payroll tax) on any component of the Executive's Fixed Remuneration.]
8. OPT[OTHER BENEFITS
8.1 Opt[Motor vehicle
(a) The Organisation will provide the Executive with a [Describe the motor vehicle/ motor vehicle of a class appropriate for the Executive] on the terms set out in the Organisation's policy.
(b) The Executive must comply with all laws relating to the driving of motor vehicles.]
8.2 Opt[Travel
The Organisation will pay for Alt[the Executive's business related travel and accommodation expenses in accordance with the Organisation's policy/[specify details] ].]
8.3 Opt[Telephone
The Organisation will pay for Alt[the Executive's home telephone rental and call costs/home internet costs/mobile telephone costs in accordance with the Organisation's policy/[specify details] ].]
8.4 Opt[Membership of professional associations
The Organisation will pay for Alt[the costs of the Executive's membership of professional associations approved by the Organisation, in accordance with the Organisation's policy/[specify details] ].]
8.5 Opt[Other expenses
The Organisation will Alt[reimburse the Executive for entertainment and other out of pocket expenses which are properly incurred in the performance of the Executive's duties, and for which prior approval has been obtained in writing from the [position title], upon the Executive providing proper records such as invoices and receipts in accordance with the Organisation's policy/[specify details]].]
8.6 Opt[Relocation and accommodation costs
The Organisation will Alt[provide the Executive with relocation assistance in accordance with the Organisation's policy/[specify details] ].]
9. REMUNERATION AND BENEFITS REVIEWS
9.1 Review
The Organisation may review the Executive's remuneration and benefits in accordance with the Organisation's policy and clauses Alt[ / ].
9.2 No obligation
The Organisation is under no obligation to increase the Executive's remuneration and benefits at any time.
10. ANNUAL AND OTHER LEAVE
10.1 Annual leave
(a) The Executive is entitled to Opt[Edt[four] weeks] annual leave in accordance with applicable legislation Opt[Alt[ and the Organisation's policy/[insert other details]]].
(b) The annual leave is to be taken at a time or times mutually convenient to the Organisation and the Executive, or otherwise as directed by the Organisation in accordance with applicable legislation Opt[Alt[ and the Organisation's policy/[insert other details]]].
[Edt – Do not insert an entitlement to annual leave that is less than four weeks.]
10.2 Public holidays
The Executive is entitled to public holidays in accordance with applicable legislation.
10.3 Personal/Carer's leave
The Executive is entitled to Opt[[10] days] paid personal/carer's leave each year which may be taken as sick leave or carer's leave in accordance with applicable legislation Opt[Alt[ and the Organisation's policy/[insert other details]]].
10.4 Long service leave
The Executive is entitled to long service leave in accordance with applicable legislation Opt[Alt[and the Organisation's policy/insert other details]].
10.5 Parental leave
The Executive may be eligible for parental leave in accordance with applicable legislationOpt[Alt[and the Organisation's policy/[insert other details]]].
10.6 Other leave
The Executive may be eligible for other leave (such as compassionate leave, jury leave or community service leave) in accordance with applicable legislation Opt[Alt[and the Organisation's policy/[insert other details]]].
11. CONFIDENTIAL INFORMATION
11.1 Ownership of Confidential Information
The Executive acknowledges that all Confidential Information which has or may come into the Executive's possession remains the property of the Organisation.
11.2 Proper use and security of Confidential Information
Subject to clause , the Executive:
(a) must not use, disclose or copy Confidential Information in any form or in any manner except for the purpose of and to the extent necessary to perform the Executive's employment duties; and
(b) must use the Executive's best endeavours, including keeping such information in a safe place and implementing adequate security measures, to ensure that all Confidential Information is secure from unauthorised access, use, disclosure or copying by third parties.
11.3 Exceptions
The obligations in clause do not apply:
(a) if the [Position Title] has agreed in writing to the specific disclosure, use or copying of Confidential Information; or
(b) to the extent that the disclosure of specific Confidential Information is required to comply with any applicable law.
11.4 Notifying the Organisation
The Executive:
(a) must immediately notify the [Position Title] if the Executive becomes aware of any breach of the obligations in clause or any other unauthorised access, use, disclosure or copying by any third party; and
(b) must immediately notify the [Position Title] if the Executive is lawfully obliged to disclose any Confidential Information to a third party and must comply with the Organisation's lawful directions in relation to the disclosure.
11.5 Continuation
The Executive's obligations under this clause continue after the Executive's employment ends.
12. INTELLECTUAL PROPERTY AND MORAL RIGHTS
12.1 Disclose all Materials
The Executive must disclose all Materials to the Organisation.
12.2 Intellectual Property Rights in Materials
The Executive:
(a) agrees that the Organisation will own all rights in and to the Materials including any Intellectual Property Rights which subsist in the Materials or which may be obtained from the Materials;
(b) to the extent necessary to give effect to this clause, assigns all of the Intellectual Property Rights in such Materials to the Organisation, and
(c) grants the Organisation a non-exclusive, royalty-free, transferable and perpetual licence to use any Existing Materials for any purpose in connection with its activities.
12.3 No Intellectual Property rights infringement
(a) The Executive warrants to the best of the Executive's knowledge and belief after making all reasonable enquiries, that:
(i) the use of the Materials and any Existing Materials by the Organisation will not; and
(ii) the Executive will not during the Executive's employment,
infringe any Intellectual Property Rights of any third party nor give rise to any liability to make royalty or other payments to any third party.
(b) The Executive indemnifies the Organisation against all actions, claims, demands, costs, charges and expenses arising from any infringement or alleged infringement of any Intellectual Property Rights by:
(i) the use of any Materials or Existing Materials by the Organisation; or
(ii) any conduct of the Executive during the Executive's employment.
12.4 Employee Moral Rights
(a) To the extent permitted by applicable law the Executive unconditionally and irrevocably:
(i) consents to any act or omission that would otherwise infringe any Employee Moral Rights, whether occurring before or after this consent is given; and
(ii) waives all Moral Rights that the Executive may have worldwide,
for the benefit of the Organisation, its licensees, successors in title and anyone authorised by any of them to do any act comprised in any copyright in the Materials.
(b) The Executive must not institute, maintain or support any claim or proceeding for infringement of any Moral Rights.
12.5 Effect to clause
(a) The Executive must do all things and sign all documents necessary to give effect to this clause 12, including without limitation, doing anything necessary to assist the Organisation to obtain or maintain registration or to protect or prove the ownership of any Intellectual Property Rights in any Materials.
(b) If the Executive does not immediately comply with clause , the Executive authorises the Organisation (or any persons authorised by the Organisation) to do all things and execute all documents necessary on behalf of the Executive to give effect to that clause.
12.6 Continuation
The Executive's obligations under this clause continue after the Executive's employment ends.
13. OPT[WARRANTIES
13.1 Executive warranties
The Executive warrants that:
(a) the Executive is skilled, trained and competent to work as a [job title] and all information provided by the Executive about work experience and qualifications is correct; and
(b) by entering into this document or performing the Executive's duties and responsibilities, the Executive will not breach any obligation the Executive has to a third party or expose the Organisation to claims from a third party.
13.2 Acknowledgement
The Executive acknowledges that the Organisation is entering into this document in reliance on these warranties.]
14. TERMINATION OF EMPLOYMENT
14.1 Immediate termination by the Organisation
(a) The Organisation may immediately terminate the Executive's employment without notice or payment in lieu of notice if:
(i) the Executive:
(A) breaches any provision of this document;
(B) engages in misconduct;
(C) fails to discharge properly the Executive's duties or responsibilities;
(D) engages in conduct (either inside or outside of the workplace) which is likely to affect adversely the reputation of the Organisation; or
(E) commits any other act which at common law would entitle the Organisation to terminate the Executive's employment without notice or payment in lieu of notice; or
(ii) the Executive becomes bankrupt or makes an arrangement or composition with creditors. Opt[; or ]
(iii) Opt[ the Board has reasonably determined that it has lost the necessary confidence in the Executive.]
(b) If the Organisation terminates the Executive's employment under clause , the Organisation will pay the Executive up to the date of termination only.
14.2 Termination by the Organisation with notice
(a) The Organisation may terminate the Executive's employment by giving the Executive [number] Alt[months/weeks] written notice or [number] Alt[months/weeks] payment in lieu of notice, or a combination of notice and payment in lieu of notice. If the Organisation is required by legislation to give additional notice in the Executive's particular circumstances, the Organisation will provide that additional notice or payment in lieu of notice, or a combination of notice and payment in lieu of notice.
(b) Except as required by legislation, a payment in lieu of notice made under this clause will be calculated on the basis of the Executive's Alt[base salary/Fixed Remuneration/Fixed Remuneration Package].
14.3 Resignation by the Executive
(a) The Executive may resign from the Executive's employment by giving the Organisation [number] Alt[months/weeks] written notice.
(b) If the Executive resigns under this clause, the Organisation may choose:
(i) to retain the services of the Executive during the notice period; or
(ii) not to retain the services of the Executive for some or all of the notice period, and make a payment in lieu of notice for the part of the notice period for which the Executive is not retained.
(c) Except as required by legislation, a payment in lieu of notice made under this clause will be calculated on the basis of the Executive's Alt[base salary/Fixed
Remuneration/Fixed Remuneration Package], and constitutes satisfaction of the Organisation's obligations to employ the Executive during the notice period.
14.4 Termination payments
(a) To the extent permitted by law, any payment made to the Executive in respect of the cessation of the Executive's employment satisfies (in whole or in part) any statutory entitlements of the Executive to payments in lieu of notice and redundancy pay.
14.5 No further claims
If the Executive's employment is terminated or ceases for any reason, the Executive has no further claim against the Organisation for payments in lieu of notice, termination or redundancy payments, remuneration or any other benefits in respect of the Executive's employment or termination, except as provided in this document.
15. RETURN OF PROPERTY
15.1 Return of property
Immediately on the Executive's employment ending or at any other time requested by the Organisation, the Executive must return to the Organisation or its authorised representative:
(a) all property belonging to the Organisation (for example cards, keys, motor vehicles, mobile telephones, computers, equipment and materials) that the Executive has or can reasonably obtain; and
(b) all property that the Executive has, or can reasonably obtain, that contains Confidential Information.
15.2 Property
In this clause, property includes anything on which information is recorded, for example, documents, computer disks and computer records.
16. RESIGNATION FROM OFFICES
16.1 Resignation
Immediately upon:
(a) the Executive's employment ending; and
(b) the Organisation directing the Employee to do so,
the Executive must resign from all directorships, offices and positions that the Executive holds in the Organisation or in any other body or entity in connection with the Executive's employment.
16.2 Execution of documents
The Executive irrevocably authorises each director and each officer of the Organisation severally to do all things and execute all documents necessary on behalf of the Executive to give effect to these resignations.
17. OPT[DEBRIEFING AND ASSISTANCE
After the Executive's employment ends:
(a) for a period of [specify] months, the Executive agrees to provide such debriefing and assistance to the Organisation as may reasonably be required by the Organisation; and
(b) upon payment of reasonable expenses by the Organisation, and only as requested by the Organisation, the Executive agrees to assist the Organisation as required in relation to any investigation, claim or litigation which may affect the Organisation.]
18. DIRECTION TO PERFORM DIFFERENT DUTIES OR STAND DOWN
18.1 Direction not to attend work or to perform different duties
(a) At any time during the Executive's employment (including for all or part of the Executive's notice period under the termination provisions in this document), the Organisation may direct the Executive:
(i) not to attend for work at the Organisation's premises;
(ii) to attend for work at a different location to the Executive's usual work location;
(iii) to perform no work; or
(iv) to perform designated duties consistent with the Executive's skills and expertise [Opt whether or not those duties form part of the Executive's usual role].
(b) The Executive's obligations under this document continue to apply during the period contemplated under clause .
19. ACKNOWLEDGEMENTS BY THE EMPLOYEE
The Executive acknowledges:
(a) that the terms of this document are fair and reasonable;
(b) that the Organisation has recommended that the Executive is free to obtain independent legal advice about this document; and
(c) that the Executive has had a reasonable opportunity to obtain independent legal or other advice about this document.
20. AMENDMENT
This document can only be amended or replaced by another document executed by the parties.
21. GENERAL
21.1 Governing Law
(a) This document is governed by the laws of [state/territory].
(b) Each party submits to the jurisdiction of the courts of [state/territory] and of any court that may hear appeals from any of those courts, for any proceedings in connection with this document.
21.2 Giving effect to this document
Each party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this document.
21.3 Operation of this document
(a) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect.
(b) Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document.
21.4 Counterparts
This document may be executed in counterparts.
EXECUTED as an agreement.
signed by [NAME OF PARTY] in the presence of:
Signature of party
Signature of witness
Name
executed by [NAME OF PARTY]:
Signature of director Signature of director/secretary
Name Name
SCHEDULE 1
Summary remuneration scheduleTOTAL REMUNERATION FOR WHICH THE EXECUTIVE IS ELIGIBLE FOR [year]
1. FIXED REMUNERATION AMOUNT CLAUSE /SCHEDULE
[Alternative 1 – Fixed Remuneration specified as a global "package" amount]
Alt1[Fixed Remuneration Package $[insert amount] per annum Includes: Amount that at
least satisfies the minimum SGC Contribution Opt[,currently $[insert amount]]; and
Other non-cash benefits elected by the Executive
[Alternative 2 – Salary + super + allowances + specified monetary benefits]
Alt1[Fixed Remuneration
(i) Base salary $[insert amount] per annum
(ii) Superannuation Amount that at least satisfies the minimum SGC Contribution, currently $[insert amount]
(iii) Opt[Motor vehicle allowance] $[insert amount]
(iv) Opt[other allowance/component with specified monetary value]]
$[insert amount] ]
SCHEDULE 2
[Insert Job Description here.]