employment australia
Employee Contract changing without approval
<p>Scenario:</p>

<p><strong>Employee</strong> works at a medium sized <strong>Company</strong> (100-500 employees). 
<strong>Company</strong> has recently changed office locations and needs to update employee contracts to reflect the change. <strong>Company</strong> presents <strong>Employee</strong> with a revised contract.</p>

<p><strong>Company</strong> informs <strong>Employee</strong> that the contract is legally binding at <strong>X</strong> date regardless of <strong>Employee</strong>'s approval and signature of the document. The contents of the contract are different beyond the address change that was the declared reason for the revision of the contract.</p>

<p>IF <strong>Employee</strong> does not sign the new document are they legally bound to the contents given their <em>"implicit consent"</em> in that they were made aware by the <strong>Company</strong> of <strong>X</strong> date?</p>

<p>IF <strong>Employee</strong> does not sign the new document AND is not legally bound to the contents of the new contract, are they still legally bound to the contents of their previous contract?</p>

<p>The employee and employer should be wary of relying on the purported variation to the initial contract:</p>

<ul>
<li><p><strong>Consideration</strong> is required in Australia for contracts to be legally binding; otherwise, agreements may be binding if executed as a deed. In the case of variations to a contract, fresh consideration may need to be provided in order to create a new contract:</p>

<blockquote>
  <p>In a recent Supreme Court decision<sup>1</sup>, when one party asserted that an agency agreement had been varied so the agent's commission was reduced from 60% to 40%, one of the reasons the court refused to uphold the alleged variation was that the agent received no consideration for the reduction in commission.</p>
</blockquote>

<p>At least this (there may be others) Supreme Court decision states that consideration is required; it reflects the common law principle (now superseded by statute in the United States) that consideration is required for a contract, and that performance of an existing legal duty is not good consideration.</p>

<p>However, let's say that it were...</p></li>
<li><p><strong>Acceptance</strong> is simply the indication that the terms are agreed to by both parties; signature is a common way, conduct even more so - we enter into contracts all the time by paying for things and walking out of shops with them. In some cases, particularly in transactions involving real property (land), written acceptance is prescribed by statute.</p>

<p>If you were to not sign the contract but your conduct was such that it would appear to an objective and informed person that you had agreed to the contract - for example, by turning up to work at the new location - then it may be held by a court that you had accepted by conduct.</p></li>
<li><p><strong>Supercession</strong> of a contract needs to be explicit - otherwise, you are bound by all previous agreements. That is, even if it would not be possible for you to perform all of your agreements, you are still contractually bound to do so, and legal remedies may be sought if you fail to do so.</p></li>
<li><p>However, if it is an implicit or explicit term that your employer provide a specific premises at which you would work, and there were no provisions that they could change it without your agreement, then you may be entitled to sue for damages when they no longer do so.</p></li>
</ul>

<p>Basically, my (unlicensed and completely general information-based) view is that the variation, even if you were to agree to it, would not be enforceable; there is no consideration.</p>

<hr>

<p><sup>1. GT Corporation Pty Ltd v Amare Safety Pty Ltd [2008] VSC 143</sup></p>
