Under the Industrial Relations Act 1999 (PDF, 1.9MB), terms and conditions of employment can be set in an award, certified agreement or Queensland workplace agreement that must be registered and approved by the Queensland Industrial Relations Commission (QIRC) to be legally binding on employers and employees.
Employees not covered by any state award or agreement are free to negotiate most of the terms and conditions of their employment contract 
with their employers, providing that the employment contract does not provide for lesser entitlements than those contained in the Industrial Relations Act 1999. View our resource page on non-award employees for more information on the industrial relations entitlements and obligations applicable to employment that is not covered by any award or agreement.
Since 27 March 2006 , award free workers employed by a constitutional corporation are entitled to the Australian Fair Pay and Conditions Standard under the Workplace Relations Act 1996 (Commonwealth).
Even if covered by an award or agreement an employer and employee may also negotiate their own employment arrangements to cover issues not provided in the award or to set terms and conditions in excess of those provided for in the applicable award or agreement.
The freedom to negotiate these arrangements is limited by certain minimum conditions of employment to which all employees (whether or not they are covered by an award or agreement) are entitled under the provisions of the Industrial Relations Act 1999. Furthermore, the Act also provides all employees (subject to certain exclusions) with an entitlement of a minimum weekly rate of pay i.e., $552.00 for full time employees, effective 1 September 2008. View our resource page on the Queensland minimum wage for more details.
The relationship between an employer and an apprentice or trainee may also be covered by an apprenticeship or traineeship order.
Between every employer and employee there exists in common law a contract of employment . The contract of employment, whether verbal or written, sets out the rights and obligations between an employer and employee.
In many cases there will be an industrial instrument , whether state or federal, detailing the minimum rates of pay and conditions for an employee. An employer and an employee are free to negotiate entitlements under their contract of employment, as long as those entitlements are not less favourable to an employee than those provided for in the applicable industrial instrument or in the Industrial Relations Act 1999 (PDF, 1.9MB). An industrial instrument will prevail to the extent of any inconsistency over common law contracts of employment.
Entitlements such as payment for public holidays, sick leave, annual leave, family leave, long service leave and dismissal notice are benefits bestowed by the Industrial Relations Act 1999 for all employees (excluding casuals, pieceworkers and school-based apprentices and trainees). View our resource page on non-award employees for more information on the industrial relations entitlements and obligations applicable to employment that is not covered by any award or agreement.
For a contract of employment to be legally binding, it must contain the following elements:
Offer and acceptance
There must be an offer (usually made by the employer) and the terms of that offer need to be made known to the person to whom it is directed before or at the time the offer is accepted. An offer can be withdrawn at any time before it is accepted. Where there is no time limit for acceptance set down in the offer, then that offer will be regarded as having lapsed after a reasonable time, even if it is not expressly withdrawn. What constitutes a 'reasonable time' will depend on the facts of the particular case.
Consideration
For there to be an enforceable contract there must be consideration. In most cases this consideration will be the payment of money in return for the performance of specified tasks. Sometimes such things as free use of a car and other fringe benefits will form part of the consideration.
Intention to create a legal relationship
Both parties to a contract must intend to create a binding relationship.
Capacity
The persons entering into the contract must have legal capacity to do so. Some groups have limited capacity, such as bankrupts, someone under the influence of alcohol or other drugs, those with mental disorders and people under the age of 18 years, unless it is for their benefit, as in an apprenticeship or traineeship.
Legality of the Work
The work that is to be performed by the employee must not be illegal.
You can negotiate your own contract of employment, as long as the employment contract does not provide lesser entitlements to an employee than those contained in the Industrial Relations Act 1999 or in an applicable award or agreement.
Where there is any difference between entitlements agreed privately in the contract and those prescribed by the applicable legislation or industrial instrument, then the provisions of the legislation or industrial instrument override the privately agreed entitlements to the extent of that difference. For example, an employee who commences work in an occupation that is covered by an industrial instrument prescribing a rate of $570 per week is legally entitled to receive that rate of pay even though the job may have been offered and accepted on the basis of payment at the rate of $560 per week.
However, where privately agreed entitlements are more favourable to an employee than those in the applicable legislation or industrial instrument or where entitlements are not provided for in the legislation or industrial instrument, then those privately agreed entitlements are legally binding entitlements under the contract.
A written contract, although desirable, is not strictly necessary. An oral agreement is enforceable as a common law contract. However, it is recommended that the following details be put in writing:
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© The State of Queensland (Department of Employment and Industrial Relations) 2006
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