It is important that you understand your contractual obligations at the time of confirming your employment, typically via an employment contract.
Individuals are often engaged in professional dental roles either via an employment contract or an independent contractor agreement. By contrast to employment contracts, independent contractor agreements are commercial in nature and their structure and inclusions differ from a typical employment contract.
It is important to note that independent contractors and employees have different rights and obligations, as individuals engaged under an independent contractor agreement are not considered to be an employee and operate with a higher degree of autonomy. If you are engaged as an independent contractor, please seek independent advice.
While written employment contracts are not a legal requirement, they are recommended as a matter of best practice to ensure protection of both the employee and employer.
Employment contracts should contain several key clauses:
Award coverage
- Employers must determine the Modern Award that covers employees and explicitly note this within the employment contract.
- Practices and their employees are typically covered by the Health Professionals and Support Services Award 2020; however, it is important to note that this Award specifically excludes coverage of medical practitioners and includes a list of common health professionals covered by the Award. Thus, an individual engaged as a dentist is not covered by this Award and is deemed to be Award-free.
- Identifying Award coverage (or non- Award coverage) is important as it will determine the minimum rate of pay, and other conditions and entitlements. Where an employee is Award-free, the National Employment Standards (NES) will apply.
- Employment contracts must not provide for entitlements less than the legal minimum requirements set out by the NES. This includes the national minimum wage of $21.38 per hour (as of 1 July 2022), among other minimum entitlements.
Confidentiality
- Confidentiality clauses are typically included, especially where the employee has access to sensitive and confidential information (such as patient details), or trade secrets.
- It ensures that practices are able to contractually protect information that could potentially be used to damage the reputation of the practice or used by an employee adversely for their own personal gain or profit, for example.
- Often extends to the requirement of employees after employment has concluded.
Restraint of trade
- Restraint of trade or non-compete provisions are often included within employment contracts, however, can be difficult to enforce.
- Restraint clauses may detail limitations on employees to be able to start their own business, poach patients or poach employees of the practice, for example.
- Employees should remain aware of restraint clauses; however, enforceability of such clauses is ultimately a decision for a court or tribunal.
Set-off clause
- Set-off clauses are most commonly found where an employee is paid above- Award rates, or for salaried employees.
- A set-off clause allows the employer to offset any payment made above the minimum requirements against any alleged underpayments of wages.
- Are typically included where the rate of pay provided to an employee is designed to be all-inclusive, hence leaving the employee better off overall.
Probationary period
- Stipulation of a probation period is common within employment contracts and typically spans anywhere from three to 12 months.
- Probation periods are designed for the employer to be able to assess the employee’s suitability for the role during the specified duration. It should be noted that a probation period is separate and distinct from the minimum employment period as dictated by the Fair Work Act 2009 (Cth).
- The minimum employment period is either six or 12 months depending on whether the practice is a large business (more than 15 employees) or a small business (less than 15 employees), respectively.
Notice periods
- Employment contracts should detail notice requirements upon an employee’s resignation, or termination of employment. Typically, notice periods will mirror those set out by the Fair Work Ombudsman which are one year or less length of service (1 week notice period), 1-3 years (2 weeks), 3-5 years (3 weeks) and more than five years (4 weeks).
- An employee will get an extra week of notice if they are over 45 years of age and have worked for the employer for at least two years. In some cases, employers may require a longer notice period.
ADA NSW Peer Advisors cannot assist with specific employment law issues, but can offer general information and advise on further help/resources. Contact the team via the ADA NSW Reception on 8436 9909.
For clarification on terms of conditions on a particular engagement, contact the ADA Federal HR Advisory Service on 1300 232 462 or email hrhotline@ada.org.au
