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Express and implied terms of the contract

All employees have an employment contract, which can be verbal, written or a combination of both. Many contracts of employment are purely verbal. While this does not reduce any contractual rights, it may be difficult to prove the existence of a particular term. A verbal contract may be later put into writing, for example, by a letter of confirmation sent after the verbal contract has been made.

If an employee is covered by a workplace agreement or an award, it is normal to rely on a verbal contract with a letter of confirmation, because the workplace agreement or award usually provides details of most of the conditions of employment. However, if the employee is not covered by a workplace agreement or award, it is a good idea to have a written contract of employment so that the conditions of employment are recorded. The contract should cover issues such as:

  • the main duties of the employee,
  • the location of the employment site,
  • whether the employee is casual, part-time or full-time, see casual employees,
  • the normal hours of work and whether the employee is entitled to payment for overtime, or time off in lieu of overtime (usually there are limits on the amount of time that can be accumulated and overtime must be agreed to in advance),
  • the level of salary or wages including whether the employee is entitled to pay rises upon certain occurrences, including cost of living increases, national wage increases, increments for age or years of service,
  • whether the job is for a fixed period or is ongoing,
  • whether there is a probationary period and the period of probation, and
  • where there is a probationary period, or where the position is for a fixed period but is renewable, the form of the review process.

The express terms of a contract of employment are those specifically agreed between the parties, whether verbally or in writing. In many cases these are few (the wage, the hours, the type of work that has to be done and where), but there are always other terms that are implied (that is, they exist without being stated or written down). These fall into two categories - those implied by law and those implied by the circumstances of a particular case. Implied terms do not apply when contradicted by an express term.

Express and implied terms of the contract  :  Last Revised: Wed Oct 26th 2016
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.