Employees should be told of the conditions of their employment. It is implicit in the notion of an agreement to employ that the parties both know exactly what they are agreeing about. However, the right of the employee to be provided with access to employment conditions prior to, or on commencement of, employment remains uncertain. Recent changes to the law have improved the right of employees to access to their terms of their employment but gaps remain that should be addressed.
Since the beginning of 2010, section 124 of the Fair Work Act 2009 (Cth) has required employers to provide each new employee a statement prepared by the Fair Work Ombudsman called the Fair Work Information Statement. The statement sets out information about the National Employment Standards (NES), modern awards, enterprise agreements and some other rights under the Fair Work Act. Under most modern awards there is an obligation to ensure employees have access to the award, either by posting it in a prominent place or by providing a copy electronically. For example, clause 5 of the Building and Construction General On-site Award 2010 states “The employer must ensure that copies of this award and the NES are available to all employees to whom they apply either on a notice board which is conveniently located at or near the workplace or through electronic means…”. Under section 180 of the Fair Work Act the employer must take reasonable steps to provide employees with access to a copy of a proposed enterprise agreement prior to voting on it. However, this does not require the employer to give a copy of the proposed agreement to the employee to take away and consider.
These improvements are laudable. However, prior to employment an employer is not required to tell prospective employees whether a modern award or enterprise agreement will apply to the employment. Nor are employees entitled to a copy of their award or enterprise agreement on request. Nor is there a requirement to post an enterprise agreement on a notice board or make it available to employees.
The system governing the information provided to new employees in the United Kingdom is a good model. For the last 50 years in the United Kingdom, employers have been required to provide to employees written particulars of the employment. The employee must be told of the rate of remuneration, the regularity of the payment, the length of notice, the place of work and the title of the position. Where they are agreed, the employer must provide particulars of the hours of work, terms relating to holidays and superannuation rights and any collective agreements that apply.
The existence of an implied obligation to inform the employee of certain conditions was considered by the House of Lords in Scally v Southern Health and Social Services Board  1 AC 294. The terms of the contract had been negotiated between the employer and the employee’s representatives. The employee was unaware of a particular term that granted him a significant benefit. The House of Lords held that where a contract of employment negotiated between employers and a representative body contained a particular term that conferred upon the employee a valuable right contingent upon the employee acting as required to obtain the benefit, and of which the employee could not be expected to be aware unless the term was brought to the attention of the employee, there was an implied obligation on the employer to take reasonable steps to bring the term to the attention of the employee. Although the recognition of some right to be informed of the terms of employment is a positive step, the court made it clear that the obligation would only arise in a narrow range of circumstances.
Another increasingly significant source of contractual rights and duties for employees is found in policy manuals published by employers. It is more and more common for employment contracts to state that the employee is bound by the terms in such manuals. It is quite common for an employee to commence work under a contract that incorporates a policy manual before being given an opportunity to read it. There is no right to be provided with a copy of the manual, or even access to it. In the United States some courts have refused to give contractual effect to policy manuals which have not been provided to employees. In Australia, so long as the policy manual is incorporated by reference into the contract it is not necessary that the employee be given a copy.
The Fair Work Act should be amended to ensure that prospective employees are entitled to be told of the name of any modern award or enterprise agreement that will apply to the employment and, on request, to be provided with reasonable access to any written terms of employment contained in policy manuals that will apply to their employment. Employees should be entitled, on request, to be provided with a copy of any applicable award or enterprise agreement. The employer should be required to post any applicable award or enterprise agreement on a notice board or make it available to employees.
Mark Irving is a barrister specialising in industrial and anti-discrimination law, and a member of the Australian Institute of Employment Rights (AIER) Executive Committee.