What to check before you send an employment contract
An employment contract can give more than the law requires, never less. Before it goes out, check it against four floors. The National Employment Standards. The Modern Award. The information statements you must hand over. And the terms the law now bans. A clause below any floor doesn't bind the employee.
It just sits in the file as evidence of what you tried to agree.
The rule every clause sits under
Start with the one sentence that governs the rest. Terms in an employment contract cannot exclude or provide for an entitlement less than the National Employment Standards, and those that do have no effect.
The same goes for the Award. A contract can't provide for less than the minimum entitlements in the award or the NES.
So the contract is not where the minimum is set. It is where you record what you are giving on top. A template that quietly undercuts the floor doesn't save money. It saves the argument for later, when the numbers are bigger.
First, what kind of employee are you hiring?
The type decides which rules apply, and it has to be right before anything else is.
Full-time or part-time. Ongoing work, with every NES entitlement.
Casual. Since 26 August 2024, someone is casual only if there is no firm advance commitment to ongoing work. They must also be entitled to a casual loading or casual rate. Calling a regular, rostered role casual doesn't make it one.
Fixed-term. There are hard limits here. A fixed-term contract can't be for longer than 2 years, including any extensions or renewals. It can't carry an option to renew more than once. Consecutive contracts for the same or similar work are restricted too. Exceptions exist, but they are narrow, so check them before relying on one.
A contractor instead. A different set of tests, and super can apply even to a genuine contractor. We cover that in do you have to pay super for a contractor.
The floor: the National Employment Standards
The NES is the minimum every employee gets, whatever the contract says. Fair Work lists thirteen entitlements.
Maximum weekly hours — 38, plus reasonable additional hours
Requests for flexible working arrangements
Parental leave and related entitlements
Annual leave
Personal, carer's and compassionate leave
Family and domestic violence leave
Community service leave
Long service leave
Public holidays
Notice of termination and redundancy pay
Superannuation
The Fair Work Information Statement and the Casual Employment Information Statement
Employee choice about casual employment
You don't need to repeat all thirteen in the contract. You need to make sure nothing in the contract cuts below any of them. The clauses that most often do are notice, leave and hours.
The money: pay the Award, not the number you agreed
This is the part of a contract most likely to be wrong without anyone noticing.
The contract names a salary or a rate. The Award names a floor for the work actually done, at the classification the person actually fits, for the hours they actually work. When those drift apart, the floor wins.
Salaried staff are where it hides. Where an Award allows an annualised wage, it has to be reviewed every 12 months, or when the arrangement ends. If the salary came in under what the Award would have paid for the hours worked, the employee must be paid the difference.
So a salary that was comfortable at 38 hours can be underpaying at 48. Nobody changed anything — the hours grew and the salary didn't. We worked through what that costs in what one wrong Award rate actually costs you.
Name the Award in the contract. Name the classification. State the hours the pay was built on. Those three lines turn a vague promise into one you can check.
The documents you hand over with the contract
The contract isn't the only thing the employee is owed on day one.
| If you are hiring | They must get |
|---|---|
| Any new employee | The Fair Work Information Statement |
| A casual | The Casual Employment Information Statement, at the start and at other times during the employment |
| On a fixed-term contract | The Fixed Term Contract Information Statement |
The Fair Work Information Statement goes out before, or as soon as possible after, they start. The simplest habit is to attach the right statements to the contract email, so they leave together.
Terms you can no longer include
Some clauses that sat in templates for years now do nothing, or worse.
Pay secrecy. Pay secrecy terms can't be included in contracts made on or after 7 December 2022. Employees have a workplace right to share, or not share, what they are paid. If your template still says salaries are confidential, take it out.
Always-on availability. The right to disconnect has applied to small business employers since 26 August 2025. A clause expecting staff to answer calls and email out of hours is worth reading again against it.
Restraints written for the old world. In September 2026 Treasury released draft legislation to ban non-competes for workers under the high income threshold. It would also ban clauses stopping former staff approaching your team, at any income. It is a draft, not law. But a restraint drafted today should be written knowing it is coming. See can you stop an employee working for a competitor.
Probation, and what it doesn't switch off
Probation is a contract term. It is useful, but it does less than most owners think.
While on probation, an employee continues to receive the same entitlements as someone who isn't, including the NES. If they don't pass, they are still entitled to notice.
Unfair dismissal protection is a separate thing, set by law rather than by the contract. An employee needs at least 6 months' service to claim it, or 12 months with a small business employer.
A small business employer here means fewer than 15 employees. The count includes full-time and part-time staff, regular casuals, and employees of associated entities. That is a different test from the under-100 small business test in consumer law. Don't mix them up.
Notice: the table most templates get wrong
Notice is where a contract most often falls below the floor without anyone intending it. The NES sets the minimum an employer must give.
| Continuous service | Minimum notice |
|---|---|
| 1 year or less | 1 week |
| More than 1 year to 3 years | 2 weeks |
| More than 3 years to 5 years | 3 weeks |
| More than 5 years | 4 weeks |
Add a week for an employee over 45 with at least 2 years' service. A contract offering a flat 1 week to everyone is fine in year one and short by year two.
The Award can add more. Check it as well.
Records, pay slips and super
The contract sets up obligations that run for years after it is signed.
Time and wages records have to be kept for 7 years. Pay slips have to reach the employee within 1 working day of payday, even when they are on leave.
Super is 12% from 1 July 2026. Under Payday Super it has to reach the fund within 7 business days of each payday, not once a quarter. A contract that still says "super paid quarterly" describes a system that no longer exists.
Before you send it: a ten-line check
Run this on the contract, not on the template you think it came from.
The employment type is right. Full-time, part-time, casual or fixed-term — and it matches how the job will really run.
The Award is named. So is the classification.
The pay clears the Award for the hours actually worked. Including overtime and penalties if the salary is meant to cover them.
Any annualised salary has a 12-month review built in. And someone owns the review.
Notice meets the NES table. Including the extra week for employees over 45.
Leave meets the NES. Annual, personal, carer's and parental.
The right information statements are attached. Fair Work, and casual or fixed-term where they apply.
There is no pay secrecy term. Or anything that works like one.
The restraint is written with the draft legislation in mind. Not copied from an old template.
Super says 12% and payday timing. Not quarterly.
When to call a lawyer
Three situations where a checklist is not enough.
Senior hires with equity or incentives. Once the contract ties into a share plan or bonus scheme, it needs drafting, not checking.
An enterprise agreement covers the role. The agreement sets its own terms, and the contract has to sit inside it.
A dispute has already started. Then the contract is evidence, and what you say next matters more than what it says.
What this doesn't cover
Enterprise agreements, which replace much of the Award for the employees they cover. State long service leave rules, which differ by state. Visa and sponsorship conditions. And workplace health and safety duties, which sit alongside the contract rather than in it.
Verified 21 September 2026, against the National Employment Standards, contracts, information statements, fixed-term, casual, pay secrecy, right to disconnect, probation, unfair dismissal, annualised wages, notice, record keeping and pay slip pages on fairwork.gov.au, and the minimum employment period page on fwc.gov.au.
The contract you send is the one you will be held to. Upload the employment contract you use today. Every clause is scored, and the pay and notice clauses are checked against the Award and the NES. The ones that fall short come back rewritten.
Contractam provides contract analysis and information, not legal advice. For advice specific to your situation, consult a qualified Australian lawyer. Contractam analyses contracts under Australian law only. See our disclaimer.