Employment Obligations in Australia: Understanding Express and Implied Duties

Contents

Introduction

Employment relationships are built on clear commitments and shared responsibilities—what we call obligations. Whether you are an employer drafting contracts or an employee seeking clarity in your working arrangement, understanding your obligations is paramount to avoiding disputes and ensuring a harmonious workplace. In this article, we’ll explore both express and implied duties, explain their significance, and discuss the consequences of failing to meet these obligations.

Read on as we break down each component of employment obligations to help you build stronger, clearer, and legally sound employment contracts that protect your business and safeguard employee rights.

What Are Employment Obligations?

Employment obligations refer to the commitments—both written and unwritten—that define the responsibilities of employers and employees under a contract. These obligations are typically divided into two main categories:

Express Duties: Clearly stated in a written employment contract.
Implied Duties: Not expressly written down, but legally binding based on law, custom, or the nature of the work relationship.

Understanding these duties and how they operate is vital. In practice, these obligations ensure that expectations are managed effectively from the outset, reducing the risk of legal disputes and fostering trust in the workplace.

Express Duties and Obligations

Express duties are the obligations that both employers and employees explicitly agree to in their written contracts. These clauses create a clear framework for what each party is expected to perform.

Employer Express Duties

For employers, express duties are often among the first items discussed when finalising a contract. Common employer express obligations include:

Paying employees their wages promptly and in accordance with agreed terms.
Making regular superannuation contributions.
Providing adequate notice or compensation upon termination of employment.
Adhering to safety and other statutory requirements.

When drafting contracts, it is crucial to include these terms in clear, unambiguous language. This not only helps manage obligations from day one but also reduces the potential for costly disputes down the track. For a deeper understanding of how clear documentation supports compliance, consider exploring insights on how important an employment contract is.

Employee Express Duties

On the flip side, employees agree to certain express duties that dictate how they will perform their roles. These often include:

Devoting the required hours and effort to job responsibilities.
Acting diligently and in the best interests of the employer.
Following all lawful directions and organisational policies.
Adhering to workplace health and safety regulations.

Such express obligations ensure that employees know precisely what is expected of them. When these duties are clearly outlined, both sides can avoid misunderstandings that may otherwise lead to disputes over responsibilities.

Implied Duties and Obligations

In addition to the express duties set out in a contract, there are implied duties that arise automatically within any employment relationship. These duties are not explicitly written into the contract, yet they are just as legally binding.

Implied Duties for Employers

Even if not spelled out, laws and customary practices impose certain obligations on employers, including:

Providing a safe and healthy work environment.
Maintaining confidentiality where necessary.
Ensuring fairness in the treatment of all employees.
Reimbursing reasonable and necessary expenses incurred in the performance of duties.

These implied duties are designed to ensure that the work environment remains conducive to productivity and fairness. Government bodies such as the Fair Work Ombudsman provide comprehensive guidance on maintaining workplace safety and fairness.

Implied Duties for Employees

Employees also have implied duties that come into play as a matter of law, including:

Obeying reasonable and lawful instructions from their employer.
Exercising reasonable care, skill, and diligence in their work.
Maintaining the confidentiality of sensitive information.
Acting in good faith and with integrity.

These duties help ensure that, even in the absence of explicit contractual terms, both parties act in a manner that promotes mutual trust and supports the business’s smooth operation.

Consequences of Breaching Employment Obligations

Failure to comply with either express or implied duties can lead to significant repercussions. For employers, breaches may result in claims of underpayment, unfair dismissal, or other employment disputes. For employees, failing to meet expectations can sometimes lead to disciplinary action or even termination.

The seriousness of these breaches underscores why every party should take the time to fully understand their obligations. Courts and tribunals consider both the express terms of a contract and the implied duties that are inherent to the nature of the employment relationship. In this context, it is useful to revisit the concept of what makes a contract legally binding when evaluating the risks of non-compliance.

How to Effectively Manage Your Employment Obligations

Proactively managing employment obligations is one of the best strategies to secure a thriving work environment and avoid expensive legal disputes. Here are some practical strategies:

Draft Clear Contracts: Detailed and unambiguous contracts that enumerate both express and implied duties help set the foundation. This is particularly important for small businesses—especially those operating as a sole trader—where the lines between personal and business responsibilities can sometimes blur.
Regularly Review and Update Contracts: Employment laws evolve, and so should your contracts. Regular reviews ensure that both express and implied obligations reflect current legal requirements and business needs.
Implement Ongoing Training: Education is key. Ensure that both management and employees understand changes in legislation and internal policies.
Document Policies and Procedures: Written policies on confidentiality, health and safety, and performance standards are invaluable. They not only reinforce implied obligations but also serve as evidence in disputes.

By establishing robust documentation and clear communication channels, businesses can minimise the risk of breaches and create a culture of accountability.

The Importance of Modern Award Analysis and Compliance

Beyond the workplace contract, employment obligations are also shaped by modern awards and statutory requirements. Modern award analysis is crucial as these awards set out minimum terms and conditions, which form part of the implied obligations employers must adhere to.

For example, the Fair Work Act 2009 and accompanying awards require employers to meet minimum standards regarding wages, leave entitlements, and other employment conditions. Regular analysis of these awards can inform your employment contracts and policies, ensuring that you remain compliant with the latest legislative changes. To gain further insights, it’s advisable to review our guide on modern award analysis.

Best Practices for Drafting and Reviewing Employment Contracts

Clear and consistent contract drafting is essential. When your contracts explicitly outline express obligations and are regularly updated to reflect any changes in law or business circumstances, you create a framework that supports compliance and reduces the likelihood of disputes.

Consider the following best practices:

Use plain language wherever possible. Avoiding legal jargon can help ensure all parties understand their obligations from the outset.
Regularly schedule contract reviews to ensure ongoing compliance with relevant legislation and best practices.
Include dispute resolution procedures so that any breach of obligations can be managed internally before escalating to litigation.
Clearly delineate roles and responsibilities, making reference to both express duties and the underlying principles that govern implied obligations.

A well-drafted employment contract is a living document—it should evolve alongside your business. This proactive approach not only strengthens internal commitment but also helps solidify a positive work culture.

It’s also important that these contracts are aligned with broader workplace policies. For example, ensuring a safe and respectful working environment is a key implied duty, particularly in the context of workplace harassment and discrimination guidelines.

Practical Steps to Ensure Ongoing Compliance

Meeting employment obligations is not solely about drafting the perfect contract—it involves continuous monitoring and enforcement. Here are some practical steps you can implement to ensure ongoing compliance:

Conduct Regular Training: Ensure that all employees and management understand both their express and implied duties through regular training sessions and updates on legal changes.
Implement Robust Performance Reviews: Use performance appraisals and feedback sessions to reaffirm how both parties are meeting their obligations.
Maintain Open Communication: Create channels that allow employees to voice concerns or seek clarification about their obligations without fear of reprisal.
Review Policies Periodically: As employment laws evolve, so too should your policies. Regular reviews help ensure that your business remains on top of statutory changes and emerging legal trends.
Engage Professional Advice: For many businesses, the complexity of employment law means that consulting with professionals is the safest way to ensure adherence to all obligations.

With these practices, you can create a workplace that not only complies with legal requirements but also fosters mutual respect and trust.

Conclusion

Employment obligations—encompassing both express and implied duties—form the backbone of effective workplace relationships. By clearly defining these obligations through well-drafted contracts and ongoing policy reviews, both employers and employees can enjoy a fair, safe, and productive working environment.

Understanding and honouring your employment obligations is not just about avoiding legal pitfalls—it is also about setting a positive tone that supports your business’s long-term success. Whether you are managing a small team or a large workforce, transparent communication and consistent enforcement of duties can make all the difference.

Key Takeaways

Express duties are explicitly stated in employment contracts and set clear expectations for both employers and employees.
Implied duties, although not written down, are legally binding and ensure fairness and safety in the workplace.
Breaches of employment obligations can lead to severe financial and legal consequences, including claims of underpayment and unfair dismissal.
Regular contract reviews, modern award analysis, and ongoing training are critical to meeting your legal obligations.
Clear, unambiguous contract drafting and open communication are essential strategies for managing employment obligations effectively.

If you would like a consultation on employment obligations, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.

Alex Solo

Alex is Sprintlaw’s co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.

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