Ask LH: Can My Boss Enforce A Minimum Resignation Notice Of 8 Weeks?

Hello, I'm currently employed as casual with no fixed work hours (generally 33-37 hours per week.) In the contract I signed when commencing employment, it states that I need to give eight weeks notice if I want to leave, but they can terminate me with one hour notice. Can they enforce this eight-week rule? That length of notice time makes it almost impossible to get another job! Thanks, Jade

Dear Jade,

Under Australian law, an employer is entitled to withhold money from an employee who does not give the minimum notice period before resigning. This is usually taken from owed wages, unused annual leave and other entitlement payouts.

The amount of notice you need to give is set by your industry award and/or employment contract. As a casual employee you are not usually required to give any notice. However, you still need to adhere to the conditions set in your employment contract (provided they are lawful, which we will get to in a moment.)

On a surface level, eight weeks does seem unusually high; especially for a casual position. Generally, the minimum notice period for resignations is four weeks — and that's for full-time employees who have been with a company for more than a year.

For example, an employee covered by the Fast Food Industry Award 2010 only has to give one week's notice during their first year on the job. The four-week rule only kicks in after five years of continuous employment.

It sounds like you may have unwittingly signed an unfair and possibly unlawful contract. Employers can't just set whatever conditions they like — the agreement must first be approved by and registered with the Fair Work Commission. This effectively stops employers from setting harsh conditions and finding someone desperate enough to sign it

Without knowing which industry you work for, it's difficult to determine how dodgy your contract is. Your first port of call should be the Fair Work Ombudsman's Notice Calculator which works out the minimum notice you are required to give based on your industry award, sub-industry and period of employment.

Show this information to your employer and request that a new contract be drawn up that accurately reflects the minimum notice you need to give before resigning. Generally, workplace negotiations that don't explicitly involve money tend to run smoothly: as long as you're not a dick about it, they will probably agree to the changes.

In any event, as a casual employee, you presumably don't have any annual leave or sick leave owing. This means your employers are limited in the ways they can penalise you. If you really need to get out of there asap, do it immediately after your last pay to minimise what's withheld. (The chances of them taking you to court over a couple of hundred dollars of "owed" labour is highly unlikely.)

If any readers have ever been in a similar position, we'd like to hear from you. Did you ever sign an employment contract that you later found to be unfair? How did you handle it? Let Jade know in the comments section below.

Cheers Lifehacker

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Comments

    The contract is a sham. Talk to Fair Work and they'll give you instructions for getting it thrown out.

    Or give them notice and walk away. If they refuse to pay you anything owed then take them to the tribunal and let them throw it out - just be sure to show you've acted 'in good faith' at all times.

    If you have to give 4 weeks because you're starting alternative full time employment and you'll lose the offer if you wait longer then you'll be covered.

    I once had an employer that requested that I provide a minimum of 12-weeks notice due to the seniority of my position and due to the specialist nature of what I did for the company. I said that 12-weeks notice was acceptable if they also had to give me 12-weeks notice if they wanted to me to cease working for them.

    What's good for the goose...

    If you are a contractor.. .. the answer is 1 hour... you don't have to give any notice despite what your contract says.. That's the whole point in being a contractor. the 8 weeks can't be enforced.

    "Notice periods don't apply to employees who are casual" http://www.fairwork.gov.au/ending-employment/notice-and-final-pay/who-doesnt-get-notice

    I once had a three month notice period on my contract, but also stated that it could be changed if both parties agreed in writing. When I wanted to leave I just asked my manager if we could agree on a different date, and it worked out.

    I am also fairly certain that if you don't give your full notice, all they can do is not pay you for the work you didn't do for that notice period, and probably withhold any leave pay.

      They can use your leave pay to cover a notice period if you don't work, but still owe you any balance.

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