Employment contract review – what to do before signing the dotted line

An employment contract sets out the terms by which you are employed and will include things like your hours of work, pay rate and termination provisions. Signing your employment contract means that you are agreeing to adhere to the terms that it sets out. You may not realize the implications of the terms of your contract until well after you signed it.

A lot of the time, people don’t pay much attention to their employment contract until an issue arises with their employer. If there ever is such an issue, the terms of your contract are going to be extremely important.

For this reason, it is critical that you understand everything that you are agreeing to before you sign on that dotted line. Enlisting the professional services of a competent lawyer to review your employment contract is a valuable way to ensure that you understand what your rights are, what your employer’s rights are, and whether there are any clauses that might one day take you by surprise.

Here are some other reasons:

These links are also useful to checking contract compliance with legislative requirements:

• • the Fair Work Act;
  • the National Employment Standards; and
  • the Fair Work Information Statement for examples relating to maximum weekly hours, parental leave, notice of termination.

Would you like an employment contract review? Contact us

We can arrange an employment contract review with one of our Employment Lawyers. This review can be done either in person or online and we offer a fixed cost of $660 including GST.  The fixed cost covers 1.5hours of work, which includes:

• • 30 minutes review of your employment contract +
  • 1 hour consultation with you, either in person, teleconference or ZOOM to explain your employment contract to you.

Please contact our office on (07) 3252 0011 and speak with one of our client engagement team to arrange an appointment today.

Enforceability of Online Contracts in Australia

In recent years, we have seen a boom in online businesses. As most businesses prefer to conduct transactions over the internet, it is important for business owners to understand and know the legalities of how online contracts are enforced in Australia.

There are two common methods of accepting terms and conditions of an online agreement. They are the click-wrap agreement and the browse-wrap agreement.

What is a click-wrap agreement?

It is an electronic agreement where the terms and conditions of the agreement are located on the same page as the “I Agree” button. Consumers are usually required to scroll through all the terms and conditions and then take positive action by clicking “I Agree” before being able to proceed.

Although this form of agreement is highly likely to be enforceable as a contract one must pay careful thought to a number of issues such as:

• • when is the contract formed? Is the merchant making an offer online that the customer accepts (that sees the formation of the contract at that point) or is the customer making an offer which may then be accepted or rejected by the merchant. The Terms & Conditions will be need to be tailored accordingly.
  • if the contract is formed at the time of clicking “I Agree” other Terms & Conditions cannot be added later.
  • do the Terms & Conditions contain clear rights of the merchant not to supply in certain circumstances?
  • do the Terms & Conditions contain clear return and refund terms that are compliant with the law in Australia?

What is a browse-wrap agreement?

A browse-wrap agreement is where the terms and conditions are not on the same page as the “I Agree” button, and can be accessed by a hyperlink on the same page. The consumer is normally not required to access the hyperlink and view the terms and conditions before being allowed to proceed with the contract. This form of agreement is less likely to be enforceable as a contract.

As the same rules of paper contracts also apply to electronic contracts, we consider two landmark cases in the law of contracts.

In L’Estrange v Graucob[1], the court decided that, a signature is taken to fully bind the consumer to all terms and conditions of the contract. This is in the absence of vitiating factors such as fraud and misrepresentation.

Modern technology has also introduced the use of digital signatures. In Australia though, it is still unclear as to whether using a digital signature counts as a signature for the purposes of the rule in L’Estrange[2]. 

It is therefore, important for business owners to construct their website in a way that provides reasonable notice prior to the formation of the contract, satisfying the rule in Thornton v Shoe Lane Parking[3].

Business owners should also take all steps to ensure the arrangement of the terms and conditions and the “I agree” button express an intention for the terms and conditions to be wholly incorporated into the Contract formed with the customer.

Best practice would see:

• • The customer is required to scroll to the end of the terms and conditions (in a scroll box for example) before being allowed to proceed, establishing reasonable notice of the contract’s terms and conditions.
  • The terms and conditions are displayed on the same page as the “I Agree” button, but the “I Agree” is located at the base of the terms and conditions, once more establishing reasonable notice of the contract’s terms and conditions.
  • Any unreasonable terms and conditions should be bolded or highlighted to draw added attention.[4]
  • An “I have read the terms and conditions” tick box should be assented to (and left blank by default, requiring an additional positive step by the customer) before being allowed to click the “I Agree” button. This is to provide a visible mark to the contract[5] and emphasize the user’s agreeability to the contract.[6]

A browse-wrap agreement is not recommended for business owners as it will place the vendor in a weaker legal position because it does not provide the same degree of reasonable notice to the user.

It is also important for business owners to consider the application of the Australian Consumer Law (ACL) on their online standard form contracts. They should pay particular attention as to whether any of the contract’s terms may be unfair contract terms.

Our lawyers regularly advise clients on eCommerce legal issues. A conference, with one of our lawyers, by phone or in person, is often enough to provide you with peace of mind that the settings are correct. Please contact us today to book an appointment with one of our lawyers.

For more information regarding the Enforceablity of Online Contracts or Click-Wrap Agreement

Please contact our client engagement team or call us on (07) 3252 0011 to book an appointment with one of our specialist Commercial Lawyers today.

Footnotes

Can you contract out of proportionate liability in a commercial contract?

What is proportionate liability? 

Proportionate liability is a concept that legal responsibility for loss should be allocated to the defendant according to their contribution to the loss.

When was the proportionate liability scheme introduced in Australia? 

Following the 2002 Review of the Law of Negligence, the Ipp Report suggested various negligence reforms. This report was initiated following the rising costs of liability insurance from 1999 to 2002.(1)  One of the changes saw the introduction of proportionate liability legislative schemes.

While most Australian states will allow parties to contract out of proportionate liability in commercial contracts where loss results from a ‘failure to take care’, Queensland, under section 7(3) of the Civil Liability Act 2003 (Qld), is the only state which expressly prohibits this.

What is Queensland’s legislative approach to proportionate liability? 

In Queensland, a defendant cannot escape proportionate liability for a breach of contract that results in economic loss or property damage if the defendant owed a duty to take care to the plaintiff (usually an implied term of the contract).

It is important for parties in commercial contracts to be aware that they may still be liable for a plaintiff’s loss due to a breach of contract pursuant to the proportionate liability provisions in the Civil Liability Act 2003 (Qld). This may apply even if a party can rely on an indemnity clause and an exclusion of proportionate liability has been drafted into the agreement to relinquish responsibility.

Who can be held proportionately liable?

Under section 31 of the Civil Liability Act 2003 (Qld) a defendant who is a ‘concurrent wrongdoer’ must only be held proportionately liable for a plaintiff’s loss. This means that a plaintiff cannot sue and claim 100% of the damages from one individual party when numerous parties have been responsible for ‘multiple causes’ of the loss.

How did plaintiffs bring action prior to the Civil Liability Act? 

Prior to the commencement of the Civil Liability Act, it was commonplace for plaintiffs to bring actions against one of multiple wrongdoers, usually insurance companies or the party with the ‘deepest pockets’. It was then up to the defendant to sue the other parties who contributed to the loss.

The Civil Liability Act, however, changed this and instead placed an onus on plaintiffs under s32 to bring an action for economic loss or property damage against all ‘concurrent wrongdoers’ in the same action.  This was to reduce litigation and to avoid multiple proceedings in respect of the same loss.

What is a concurrent wrongdoer? 

A concurrent wrongdoer is defined in s 30 of the Civil Liability Act as:

a person who is 1 of 2 or more persons whose acts or omissions caused, independently of each other, the loss or damage that is the subject of the claim.

What if a concurrent wrongdoer is insolvent? 

The Civil Liability Act also provides that it does not matter that a concurrent wrongdoer is insolvent, is being wound up, has ceased to exist or has died.

Concurrent wrongdoers and proportionate liability is discussed further in the 2013 High Court of Australia case of Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd [2013] HCA 10.

S 7(3) of the Civil Liability Act 2003 (Qld)

While most states allow parties to contract out of the statutory proportionate liability regime, Queensland’s Civil Liability Act prohibits parties from making “express provision for their rights, obligations and liabilities under the contract” in relation to proportionate liability.

It has been suggested that it may still be possible to exclude proportionate liability in Queensland by drafting an exclusion clause whereby the parties agree that the person being indemnified owes no duty of care to the plaintiff in an attempt to circumvent s28 and 29, Chapter 2 of the Civil Liability Act which only applies when an action is brought that is concurrent and coextensive in contract and tort (negligence).

Have a question on interpreting contracts? 

Contact our client engagement team to make an appointment with one of our commercial litigation team today. Call (07) 3252 0011.

Helpful Links 

• How online contracts may contravene the Australia Consumer Law
• SAAS Contracts – A Plain Language Explanation of what they are and what they do
• Could contract frustration save your business from coronavirus? 
• I’ve received a contract. Do I need an employment contract lawyer? 

Footnotes

[1] Tort Law Reform, Law Council of Australia

When Can a Buyer Terminate an Off-the-plan Contract?

When a buyer enters into an off-the-plan contract to purchase a particular lot in a community title scheme, years may pass before the development is completed, title created and able to be transferred into the buyer’s name.  During this time, market conditions may change, building schedules may be extended, or it may become apparent that the finished product will be something quite different from what a buyer had originally contracted for.  Generally it has proven very difficult for buyers who have changed their mind to get out of these contracts.

However, there are limited grounds upon which a buyer may be able to terminate an off-the-plan contract namely:

• • Misleading and deceptive conduct;
  • Failure to disclose;
  • Changes / Variations to the disclosure statements; and
  • Developers failing to complete construction before the sunset date.

When a buyer desires to terminate an off-the-plan contract, they should promptly seek legal advice as to their options.

Misleading and Deceptive Conduct

A buyer may be able to rely on the Australian Consumer Law and terminate a contract if they were induced to enter the Contract as a result of misleading or deceptive conduct on the part of the Seller. The difficulty for buyers in alleging such behaviour is that the situation can often turn into a “he said, she said” argument.

Nevertheless, it is not impossible for a buyer to be successful in terminating a contract on such grounds as seen in the case of Nifsan Developments Pty Ltd v Buskey.[1] The Buyers in this case had communicated to the developer’s agent that they were seeking to purchase a Gold Coast apartment with unrestricted views. The Buyers subsequently entered into a contract to purchase a penthouse apartment from the developer after its agent confirmed that the views from the penthouse would be uninterrupted. However, the Buyers later found out that the developer had sought approval to develop a separate building in close proximity to their apartment which would limit the Buyer’s view. Relying on s 52 and 53A of the Trade Practices Act 1974 (Cth) (since superseded by the Competition and Consumer Act 2010 (Cth)), the Buyers were successful in having the contract declared void and obtaining a refund of their deposit.

The court formed the view that the misleading representations made by the sales agent induced the Buyers to enter into a contract with they otherwise would not have entered. It is worth noting that this case seemed to turn on the issue of credibility, with the judge viewing the buyer’s recollections as “generally reliable” as opposed to those of the sales agent whose evidence was viewed as “not convincing”.

Failure to Disclose

A buyer has the right to terminate an off-the-plan contract prior to settlement (within certain prescribed time limits), if the seller has not provided the buyer with a disclosure statement in the prescribed form.

If a substantially complete disclosure statement is provided, a buyer may still be able to terminate the contract prior to Settlement if it is later revealed that the statement contains inaccuracies. In such circumstances the Body Corporate and Community Management Act 1997 (Qld) allows a buyer to terminate if they would be “materially prejudiced if compelled to complete the contract, given the extent to which the disclosure statement was, or has become, inaccurate”. Additionally, any buyer purporting to terminate must do so in writing, within the requisite time period.

When considering whether a “material prejudice” exists, the courts will consider the buyer’s specific circumstances from an objective point of view. In Gough v South Sky Investments Pty Ltd,[2] a group of buyers had each contracted to purchase a luxury Gold Coast apartment in a ‘residential tower’ called ‘The Oracle’. The contracts were entered into in 2005-2006, after which the value of luxury apartments in the area began to decline. In 2010, SSI advised the buyers that the ‘residential tower’ in which lots had been purchased would in fact function as a hotel/resort, and would be branded as ‘Peppers Broadbeach’. As a result, some buyers claimed that they would suffer material prejudice if they were forced to complete their contracts for a myriad of reasons, including:

• • That their lots would decrease in value because of the Peppers branding and the operation of a hotel/resort by Peppers;
  • That it would be more difficult for them to rent their lots, or appoint an off-site letting agent because of the hotel/resort being operated;
  • That the operation of a hotel/resort that focused upon short-stay tenants was likely to accelerate the deterioration of common property.

Ultimately, the court found that the buyers did not provide evidence to prove that the branding of the tower as ‘Peppers Broadbeach’ had an adverse effect upon the value of their apartments.  As a result, they were unable to prove that they would be materially prejudiced if forced to complete the Contract.

Sunset Dates

The sunset date in an off-the-plan contract is a date in the future (usually between 12 and 36 months from the date of contract) within which the Developer must complete the construction of the property and have the Community Titles Scheme established (and title to the lot to be purchased created).

Section 217B of the Body Corporate and Community Management Act 1997 (Qld) also provides buyer’s with a right to terminate an off the plan contract if the Seller does not settle the contract by the statutory sunset date. When a contract does not specify a sunset date, the seller must settle the contract within 3.5 years after the day the contract was entered into by the buyer (unless otherwise agreed by the parties). Importantly, a buyer will only be able to terminate after the expiry of the sunset period if they are not in default under the Contract. This means for example, that where a vendor is ready, willing and able to provide a registrable instrument of transfer, a buyer cannot simply refuse to attend at settlement, wait for the sunset period to expire, and then terminate their contract without consequence.

Contact us

If you have any questions relating to off-the-plan contracts, contact our Client Engagement Team and they will book you an appointment with one of our property lawyers. Call us today on (07) 3252 0011.

[1] [2011] QSC 314.

[2] Gough v South Sky Investments Pty Ltd (recs and mgrs apptd) (in liq) [2011] QSC 361

Other related articles

https://corneyandlind.com.au/resource-centre/failing-to-settle-off-the-plan-contracts/

https://corneyandlind.com.au/resource-centre/buying-and-selling-units-off-the-plan/

https://corneyandlind.com.au/resource-centre/off-the-plan-contracts/