Memorandum of Advice (Example) - March 2021 PDF

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PO Box 13164 Law Courts Vic 8010 DX: 498 Melbourne

LAWYERS

T: (03) 9885 3960 F: (03) 9885 3960 E: [email protected] W: www.tbjlaw.com.au

ACN: 621 507 926

Our Ref: RF:2017XXXX 6 December 2017 Ms. Wonder Woman

1975 Bohemian DriveMELBOURNE VIC 3000 Dear Ms. Woman,

Memorandum of Advice As per our phone conversation on 12 February 2017, I now provide you a Memorandum of Advice concerning your employment contract and relationship with Comic Book Services. 1. The recitals need to be expanded beyond the two existing points. They need to include points outlining your length of tenure and that the parties now agree to put an agreement in writing moving forward. 2. “1. Engagement” outlines the agreement moving forward. I would suggest adding some additional provisions at the beginning of this section detailing that you commenced working on such and such date, under an oral arrangement and that the parties now wish to put the agreement into a written instrument. 3. I would amend 1.3 from ‘Employer may change these Duties during the course of the Employee’s employment after consultation with the Employee’ to ‘Employer may change these Duties during the course of the Employee’s employment after only consultation and agreement with the Employee’. 4. I would have provisions added at the end of ‘Engagement 1’ that expressly notes your current entitlements – i.e. annual leave, long service leave, personal leave, etc. – and that they will continue to accrue under this written agreement. 5. I would amend 2.1(b) under “2. Employee’s Obligations” from ‘promptly follow all lawful and proper directions’ to ‘promptly follow all lawful and reasonable proper directions’. 6. I would amend 2.1(e) under “2. Employee’s Obligations” from ‘co-operate and assist management and other employees as and when required’ to ‘co-operate and assist management and other employees as and when reasonably required’. 7. I would amend 2.3 under “2. Employee’s Obligations” from ‘Notwithstanding this, the Employee must carry out such work’ to ‘Notwithstanding this, the Employee must carry out such work providing that the request and work is reasonable in the circumstances’.

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8. I would amend 2.4 under “2. Salary/Wages” by eliminating the final line ‘In particular the Employee must always …’. The first sentence is adequate. The second sentence is a ‘setup’ clause. 9. I would amend 3.4 under “3. Salary/Wages” by deleting the word ‘annually’ and adding ‘at least once per annum’ after the word ‘reviewed’. 10. I would amend 4.3 under “Hours of Work” by deleting ‘Division 3 of Part 2-2 of the Act, unless an Award or Collective Agreement provides otherwise’ and add instead ‘award: Building Construction MA 000020’. 11. I would amend 4.4 under “Hours of Work” from ‘may be subject to change’ to ‘may be subject to reasonable change’. 12. I would amend 14.5-14.7 under “Termination of Employment” by amending ‘1 year’ to ‘three (3) months’. 12 months is unreasonable and the courts will be unlikely to uphold more than three months in your circumstance and position. 13. I would amend 16.3 under “Confidentiality and Trust” by amending ‘The Employee must not make disparaging remarks about the Employer to its other employees, to customers or to any other person’ to ‘The Employee must not make disparaging remarks about the Employer to its other employees, to customers or to any other person’. There is no reason to have ‘other employees’ there. It is a ‘set-up’ clause. 14. There are various grammatical errors throughout the contract that probably should be amended. 15. The three items outlined in the ‘Schedule’ should be populated in the contract proper. There is no reason to have these separately in a Schedule. 16. The warning letters seem to be without reason and justification. If so, this constitutes adverse action against you in retaliation for your actions against his initial proposed contract. The Fair Work Act 2009 (Cth) and common law guards/protects against this sort of action. Advise me of this immediately if any further such action occurs.

Yours faithfully

Roman Fida Principal...