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Employment Agreement |
AGREEMENT
made this day of ,
1994
BETWEEN D PTY. LIMITED A.C.N.
012 345 678 a duly incorporated company having its registered
office at JAF & Co., 107 Brown Street, Sydney in the State of
New South Wales ("the employer") of the One Part
AND PGR of 15 White Street, Dubbo in the
said State, Carpenter & Joiner of the Other Part
WHEREAS the parties wish to enter into the
relationship of employer and employee upon the terms and conditions
hereinafter contained
NOW THIS AGREEMENT WITNESSES:
1. Position, Duties & Hours of Work
(a) The employee shall be employed in the position set out in Item 1 of the
Reference Schedule.
(b) The the duties of the employee shall be:-
(i) The application of all the employee's skill and knowledge to his
duties under this agreement;
(ii) To devote such time and attention to the business of the
employer as required by the employer from time to time and
will carry out to the best of the employee's skill and ability
under the lawful direction of the employer's authorised
officers, agents or representatives, any and all duties assigned
to the employee;
(iii) Such other as specified in Item 2 of the Reference Schedule.
(c) The employee's duties shall be carried out between the hours and
during the days referred to in Item 3 of the Reference Schedule other
than on those days which are public holidays. The employee shall also
carry out his duties at such other times and on such other days as may
reasonably be required.
2. Term
The term of the employee's employment shall be the period set out in Item 4 of
the Reference Schedule and shall commence on the date specified in Item 4 of
the Reference Schedule.
3. Renewal
During the term of the employment the parties may agree in writing to continue
the employment for a further term.
4. Remuneration
(a) The remuneration of the employee shall be as set out in Item 5 of the
Reference Schedule.
(b) The employer shall review the employee's remuneration annually and
shall adjust the remuneration in accordance with the employer's policy
of annual review based on performance, productivity and such other
matters as the employer shall in its absolute discretion consider relevant.
5. Annual Holidays
(a) The employee shall be entitled to four (4) weeks paid holiday each year
in accordance with the provisions of the Annual Holidays Act, 1944
(N.S.W.). The employer shall pay to the employee, on each occasion
the employee takes paid annual leave an additional 17.5 % of the
amount of that paid leave.
(b) The employee shall be entitled to the additional leave set out in Item 6 of
the Reference Schedule on the terms specified in Item 6.
6. Sick Leave
(a) The employee shall be entitled to full pay for such period or periods
during which the employee may be incapacitated or prevented by
illness, injury or accident or by any other circumstances beyond his
control from carrying out the employees duties for the period set out in
Item 7 of the Reference Schedule. Such sick leave entitlement shall not
be cumulative to the extent that leave on full pay not taken at the end of
each period of specified in Item 7 shall be forfeited.
(b) The employee shall if required by the employer produce a medical
certificate from a legally qualified medical practitioner, or shall provide
such additional information or documentation (verified on oath if
necessary) as the employer may require from time to time in connection
with the payment of sick leave.
7. Inventions
(a) Any discovery or invention or secret process or improvement in
procedure made or discovered by the employee during the term of this
agreement, or extension thereof, in connection with or in any way
affecting or relating to the business of the employer or any of its
subsidiaries (if any) or capable of being used or adapted for use therein
or in connection therewith shall forthwith be disclosed to the employer
and shall belong to and be the absolute property of the employer or such
one of its subsidiary companies (if any) as may be nominated by the
employer for that purpose.
(b) The employee shall, if and when required so to do, whether during or
after the termination of this agreement, at the employer's expense apply
or join in applying for letters patent or other similar protection in
Australia or in any other part of the world for any such discovery,
invention, process or improvement and shall execute all instruments and
do all things necessary to vest the letters patent or other similar
protection when obtained and all right and title to an interest in the same
in the employer or its nominee absolutely and as sole beneficial owner
or in such other person as the employer may require.
8. Confidential Information
The employee will not at any time either during the term of this agreement or any
extension thereof or after the termination of the employment for any reason
divulge any of the affairs or secrets of the employer to any other company,
person or persons without the previous consent in writing of the employer, not
use or attempt to use any information which the employee may acquire in the
course of the employment in any manner which may injure or cause loss or be
calculated to injure or cause loss to the employer.
9. Suspension
(a) The employer may suspend the employment of the employee at any time
if:-
(i) By reason of circumstances beyond the control of the employer
the employer cannot usefully utilise the services of the
employee; or
(ii) The employee shall have committed a breach of the terms and
conditions of this agreement or the employer shall have
reasonable grounds for suspecting that such a breach shall have
occurred, and in either case to enable the employer time to
consider what further action shall be taken with respect to the
employee on account of such breach or suspected breach.
(b) Upon the employment of the employee being suspended, the employee
shall not be entitled to receive any remuneration by way of wages or
salary or other benefit under this agreement, nor shall the employee be
required to carry out any work.
(c) For the purposes of this clause, remuneration includes any
contributions made to the employer's Superannuation Scheme or
allowances paid to the employee from time to time.
10. Termination
(a) The employer may terminate this agreement at any time without prior
notice if the employee shall:-
(i) commit any serious or persistent breach of any of the
provisions of this agreement;
(ii) be guilty of any grave misconduct or wilful neglect in the
discharge of the employee's duties;
(iii) become bankrupt or make any arrangement or composition
with the employee's creditors;
(iv) become of unsound mind;
(v) be convicted of any criminal offence other than an offence
which in the reasonable opinion of the employer does not affect
the employee's position as an employee of the employer; or
(vi) become permanently incapacitated by reason of accident or
illness from performing the employee's duties under this
agreement and for the purpose of this sub-clause incapacity in
excess of that specified in Item 8 of the Reference Schedule
shall be deemed to be permanent incapacity.
(b) Either party may terminate this agreement at any time by giving to the
other notice in writing for a period of not less than the period referred to
in the Item 9 of the Reference Schedule, or in the case of the employer
paying remuneration in lieu of notice.
(c) Upon the termination of this agreement for any reason, the employee
shall resign without claim for compensation from office as a director of
the employer and from all offices held by the employee in subsidiary
companies of the employer (if any) or as Public Officer and in the event
of the employee failing to do so the employer is hereby irrevocably
authorised to appoint some person in the employee's name and on the
employee's behalf to execute any documents and to do all things
required to give effect to the provisions of this sub-clause.
(d) Upon the termination of this agreement for any reason, the employee
shall deliver to the employer all documents used by the employee in the
course of the employer's business, including but without limiting the
foregoing, all price lists, mailing lists, customer, client or supplier lists,
sales information, catalogues, diaries, log books, computer software
and computer data.
11. Restrictive Covenant
The employee expressly agrees as follows:-
(a) Not at any time during the period referred to in Item 10 of the Reference
Schedule after the termination of the employment for any reason to
undertake or carry on or be employed or directly or indirectly be
concerned or interested either as employer, employee, consultant,
director or shareholder in any business as described in Item 10 of the
Reference Schedule at any place within the area specified in Item 10 of
the Reference Schedule;
(b) Not at any time during the period referred to in Item 10 of the Reference
Schedule after termination of the employment to attempt personally or
by letters, advertisements or otherwise to obtain customers or clients of
the employer within the area specified in Item 10 of the Reference
Schedule for any person, firm or company, other than the employer,
carrying on any business of the kind referred to in Item 10 of the
Reference Schedule whether within or outside the areas described in
Item 10 of the Reference Schedule;
(c) Not at any time either during or after the termination of the employment
for any reason and either on the employee's own account or for any
other person or for any firm or company to solicit, interfere with or
endeavour to entice away from the employer any person, firm or
company who at any time during the continuance of the employment
shall have been a customer or client of the employer;
(d) Not at any time without the authority of the employer to divulge to any
person any information in connection with the employer or any of the
businesses or customers or clients of the employer which the employee
may have acquired during or as incident to his employment;
(e) Not to represent the employee as having been associated with the
business of the employer without the prior written consent of the
employer having been first obtained.
12. Relationship of the Parties
The parties hereby specifically agree that it is intended that this agreement shall
create the relationship of employer and employee between them and they hereby
state that it is not their intention to create any other relationship and, in
particular, the relationship of principal and agent, principal and contractor or the
relationship of partners.
13. Notices
All notices hereunder by one party may be sent either by personal delivery or by
pre-paid post to the last known address of the other or in such manner as any
arbitrator may direct. Notices sent by mail shall be deemed to be received two
days after they were placed in the post.
14. Governing Law
This agreement shall be governed by and interpreted in accordance with the laws
of the State of New South Wales and the parties submit to the non-exclusive
jurisdiction of the Courts of the State of New South Wales.
15. Mediation
It is the intention of the parties, without creating any legal obligation, that any
dispute, controversy or claim arising out of or relating to this agreement or the
breach, termination or invalidity of this agreement shall be referred to the person
or body specified in Item 11 of the Reference Schedule, or such other person or
body agreed to between the parties, for their assistance. Any meetings organised
for mediation purposes shall be held at the location specified in Item 11 of the
Reference Schedule or such other place as may be subsequently agreed by the
parties.
16. Arbitration
In case of any dispute or difference arising between the parties as to the
construction of this agreement or the rights, duties or obligations of either party
under this agreement or any matter arising out of or concerning this agreement
every such dispute and matter of difference shall be submitted to arbitration in
accordance withe provisions of the Commercial Arbitration Act, 1984, either to
a single arbitrator if the parties shall so agree or if the parties do not so agree one
arbitrator shall be appointed by each party in accordance with the provisions of
the said Act.
17. Interpretation
(a) For the purposes of this agreement and unless the context otherwise
requires, singular words include the plural and vice versa and reference
to any gender includes all genders.
(b) For the purpose of this agreement, employer includes all successors,
assignees and transmittees of the business of the employer.
(c) If any provision of this agreement shall be invalid and not enforceable
in accordance with its terms, all other provisions which are self-staining
and capable of separate enforcement without regard to the invalid
provisions, shall be and continue to be valid and enforceable in
accordance with their terms.
(d) No variations of this agreement shall be effective unless they are made
in writing signed by a duly authorised representative of each party.
18. Costs
The costs of and incidental to the preparation of this agreement shall be borne by
the employer.
REFERENCE SCHEDULE
Item 1. Position: Manager
Item 2. Duties: Assist in the general
operation of the bench top making
business of the employer located at
Dubbo and without limiting the
foregoing: training all staff in the
operation of a bench top making
business.
Item 3. Hours of Work: Ordinary
trading hours as determined by the
employer provided that the basic
hours of duty shall not exceed forty
(40) hours per week.
Item 4. Term of Employment: One (1) year
Commencing on:
Terminating on:
Item 5. Remuneration: To be agreed
upon by the parties
Payable: Paid weekly in arrears
Item 6. Additional Leave: Nil
Item 7. Sick Leave: Eight (8) days in any
twelve (12) consecutive calendar
months
Item 8. Deemed Incapacitated: Thirty (30)
consecutive days or for an aggregate
period of sixty (60) days in any
period of twelve (12) months
Item 9. Period of Notice: One (1) month.
Item 10.Restraint Period: Two (2) years
Restrained Business: Bench top
manufacture
Area of Restraint: Within the
Dubbo & Wellington post code areas
Item 11.Mediator: Australian
Commercial Disputes Centre Limited
("ACDC")
Location for Mediation: Dubbo
IN WITNESS whereof the parties have
executed under hand on the day and year first above written.
The COMMON SEAL of)
D PTY. LIMITED)
was hereunto affixed by authority )
Director of the Board of Directors ) Director
in the presence of: )
Secretary
SIGNED by the said)
PGR )
)
in the presence of: )
DATED
, 1994
D PTY. LIMITED
A.C.N. 012 345 678
of the One Part
PGR
of the Other Part
___________________
EMPLOYMENT
AGREEMENT
___________________
