What to do if promises made in person are not in your contract?

Trade Practices Act 1974 (Cth) and the Competition and Consumer Act 2010 (Cth)

If your employer has made specific representations to you as a prospective employee in an attempt to induce you to sign an employment contract, it may be in contravention of the Trade Practices Act 1974 (Cth) or the Competition and Consumer Act 2010 (Cth), depending upon when the representations were made. Your employer will have breached the legislation if the representations made to you regarding your employment were misleading or liable to mislead you.

In most cases, the employment contract will contain an ‘entire agreement clause’ which states that the written employment contract contains all terms and conditions of employment and supersedes any prior contractual or non-contractual representations or agreements. If the employment contract that you have signed contains such a provision, it may operate to exclude any previous oral representations from constituting legally enforceable terms of your employment. However this is not always the case and legislative provisions may alter the contractual agreement that you have made with your employer.

If you have been misled to believe that you were being employed according to terms that were agreed upon orally before a written employment agreement was signed, your employer may be bound to abide by those pre-contractual representations or pay compensation for breaching them. However the precise factual details of each individual case will determine whether or not the oral representations are legally enforceable.

The provisions regulating misleading conduct by employers are contained in the Competition and Consumer Act 2010 (Cth). Section 31 of Schedule 2 of the Act states that a person must not, in relation to employment that is to be, or may be, offered by the person or by another person, engage in conduct that is liable to mislead persons seeking the employment as to:

(a) the availability, nature, terms or conditions of the employment; or

(b) any other matter relating to the employment.

Further to this, section 18(1) of Schedule 2 of the Act states that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. If your employer has verbally promised you that your employment will be governed by certain terms that are not embodied in your written contract, and it seeks to act in contravention of those terms, it may be engaging in misleading or deceptive conduct in breach of the Competition and Consumer Act 2010 (Cth).

As a result of these provisions employers have a clear duty not to mislead you about the terms or nature of the position that you apply for. These terms may, for example, include representations relating to the duration of your employment, the roles and responsibilities of the position and/or remuneration.