Full-time non-award employment contracts, the key clauses and what they do

You have found the right candidate, the salary is agreed, and a contract template is sitting on your desk. If the role is not covered by a modern award, that template is doing more work than it would for any other hire, because almost everything that an award would normally settle, from how extra hours are paid to what happens after the employment ends, has to be settled in the document in front of you.

For an award-free full-time employee, the contract is the primary source of the terms of the working relationship. It sits on top of a statutory floor, the National Employment Standards (NES) in the Fair Work Act 2009 (Cth), which applies to every national system employee and cannot be displaced: s 61 of the Act says so in terms, and s 44 makes contravening the NES a civil remedy provision. You can contract for more than the NES, never less. Everything below assumes that floor exists.

The essential clauses, one by one

What the job actually is

Start with the job title, a description of the core duties and who the employee reports to. The drafting choice that matters here is flexibility: include a clause that lets you vary duties and reporting lines reasonably as the business changes, because the alternative is a formal variation every time responsibilities shift. The trap runs the other way too. If the duties are stated so loosely that nobody could say what the role involves, performance management later becomes a fight about what the employee was actually hired to do. Anchor the clause in the genuine requirements of the role, because it will be the reference point for reviews, performance-based termination and any dismissal defence.

Hours, and how extra time is treated

The NES caps ordinary full-time hours at 38 per week, and allows additional hours only if they are reasonable: s 62 of the Fair Work Act 2009 (Cth). The employee can refuse additional hours that are not reasonable, and reasonableness is assessed against factors that include health and safety, the employee's personal circumstances and family responsibilities, the needs of the workplace and whether the employee is compensated for the extra time.

State the ordinary hours and their spread across the week, then deal expressly with additional hours. The single most important drafting choice in the whole contract is whether the salary is intended to compensate the employee for reasonable additional hours, and that intention needs to be stated in words, not assumed.

Trap: For a non-award employee there is no award overtime or penalty safety net. If the contract is silent on how extra hours are paid, a later dispute is decided by the contract, and silence will not help you.
Trap: Do not promise overtime pay in one clause and say the salary covers all hours in another. Inconsistency is exactly what disputes are built on.
Drafting minimum: Say what makes additional hours reasonable in your workplace, by reference to the s 62 factors. "Reasonable" is a legal test, not a blank cheque.

Salary, super and the inclusive-salary question

Set out the base salary, how often it is paid, and any allowances or benefits such as a phone, car or bonus eligibility. On superannuation, the superannuation guarantee has been 12% since 1 July 2025, and superannuation contributions are now part of the NES itself (s 61(2)(ha)), so they cannot be traded away in the contract.

The drafting choice that decides how this clause performs is the inclusive-salary sentence: a statement that the salary compensates the employee for all reasonable additional hours. Award-covered employers have a statutory mechanism for the same outcome, the guarantee of annual earnings under s 330, which must be in writing, agreed before the period starts and within 14 days of the employee starting. A genuinely non-award employee has no equivalent formality, which cuts both ways: you have more drafting freedom, but the outcome rests entirely on the wording of the contract.

Context: The high income threshold is indexed each 1 July and sits at $190,100 for 2026-27. An award-free employee earning above it is not protected from unfair dismissal under s 382, which changes how much the termination clauses in this contract matter.
Drafting minimum: Put the inclusive-salary sentence in the same clause that sets the salary, not buried in a schedule. It needs to be visible and consistent.

Leave entitlements

The NES sets the leave floor: 4 weeks of paid annual leave per year (s 87), 10 days of paid personal/carer's leave per year (s 96), compassionate leave when a member of the employee's immediate family dies or is seriously ill, 10 days of paid family and domestic violence leave each year (s 106A), public holidays and long service leave under state and territory laws.

State these entitlements expressly in the contract, note any top-ups the business offers such as extra annual leave or study leave, and keep accrual and any cashing-out arrangements consistent with the NES. The trap is a contract that promises less than the NES minimum. The NES applies anyway, so the contract ends up misstating the deal and creating the very confusion it was meant to remove.

Probation and the safety net underneath it

Probation is a contractual idea. The Act does not create a probation period, but it does create the landmarks that make probation meaningful. Unfair dismissal protection requires the employee to have completed the minimum employment period: 6 months, or 12 months if the employer is a small business (s 383). For an award-free employee, protection also requires earnings below the high income threshold (s 382).

A probation clause sets the assessment period, commonly three to six months, and can provide for shorter notice during probation. It cannot go below the NES minimum notice for the employee's period of service (s 117), which for a new hire is one week.

Trap: Probation does not suspend the general protections. A dismissal during probation can still be challenged if it is alleged to be for a prohibited reason, such as a protected attribute or a workplace right.
Trap: For a high earner above the threshold, the unfair dismissal route is closed, but contractual claims for notice and general protections claims are not. Draft the exit terms as if they will be enforced.

Confidentiality and who owns what the employee creates

A confidentiality clause should define confidential information by category, client lists, pricing, business strategy, financial information, systems and know-how, impose obligations that continue after employment ends, and allow disclosure only in the proper performance of duties or as required by law. The drafting choice that matters is definition: a clause that protects "everything" without naming categories is hard to enforce when it counts.

On intellectual property, include an express assignment clause so that ownership of what the employee creates does not depend on arguments about implied terms. If the employee is bringing pre-existing materials with them, carve those out and ask for a list before they start.

Variant: For senior hires who bring existing materials or work with third parties, consider a standalone IP assignment or a schedule identifying pre-existing IP alongside the contract.
Trap: Confidentiality and IP clauses that do not survive termination quietly lapse when the employment ends, which is exactly when the risk of misuse is highest.

Restraints after employment ends

Non-compete, non-solicit and non-poach clauses protect client relationships and confidential information after the employment ends, but Australian courts enforce a restraint only to the extent it protects a legitimate business interest and goes no further than reasonably necessary in duration, geography and scope. A cascading clause, stepping the restraint down in stages, is a recognised technique for preserving enforceability: if one step is too wide, the court can enforce a narrower one (OAMPS Insurance Brokers Ltd v Hanna [2010] NSWSC 781).

Variant the employee will push for: a restraint limited to clients the employee actually dealt with, rather than every client of the business.
Trap: a nationwide, multi-year restraint on a mid-level employee is usually unenforceable, and an unenforceable restraint protects nothing.
Drafting minimum: tie the restraint to what the employee actually has: client relationships, confidential information, specialised knowledge.

Notice, redundancy and ending the relationship

The NES sets minimum notice under s 117: one week for up to a year of service, two weeks for one to three years, three weeks for three to five years and four weeks beyond five years, plus an extra week if the employee is over 45 and has at least two years of service. Payment in lieu of notice is expressly permitted, and the contract can always require more notice than the minimum.

Genuine redundancy pay scales with service under s 119, from four weeks after a year of service up to a maximum of 16 weeks, and the Fair Work Commission can reduce the amount where the employer obtains other acceptable employment or genuinely cannot pay (s 120). For senior roles, a garden leave clause lets you direct the employee to stay away from work, or perform limited duties, during the notice period while remaining employed and paid.

Two administrative obligations sit alongside the exit clauses. Give each new employee the Fair Work Information Statement before, or as soon as practicable after, they start (s 125), and remember that untaken annual leave is paid out on termination (s 90).

Offboarding minimums: final pay on time, the annual leave payout, return of company property, and a written reminder of the confidentiality and restraint obligations that continue after the last day.

The everyday clauses

The remaining clauses do less dramatic work but still earn their place. Expenses: what is reimbursable, the approval process and the documentary evidence required. Policies: incorporate the code of conduct, WHS, IT and social media policies by reference, and state that policies are not contractual and can be changed. Company property: list the items and require their return on request and on termination. Disputes: an internal escalation process and good faith discussion before external claims are made. General terms: governing law and jurisdiction, whole agreement, variation, severability and electronic execution.

Optional clauses worth including

A handful of further clauses are optional, but worth including where the role calls for them:

Time off in lieu: worth including where the role will sometimes run long and the business would rather bank hours than pay for them; specify how it accrues and how it is taken.
Bonus, commission or incentive terms: where pay is partly variable, state how unvested amounts are treated on termination and any clawback for overpayment or misconduct.
Conflicts of interest and secondary employment: where the role involves client relationships or sensitive information, require disclosure and written consent before any outside work.
Electronic execution and variation: where the team works remotely, this keeps later variations practical and the paper trail intact.
A written guarantee of annual earnings: relevant only where you are not certain the role is genuinely award-free. If the award does apply, a s 330 guarantee, in writing and agreed within 14 days of the employee starting, preserves the inclusive-salary outcome for a high earner. Get advice before relying on it.

When an Artificer Legal employment lawyer should look at this contract

The first thing we would do in a review is verify award coverage. The word "non-award" on the front page does not make a role award-free: coverage follows the duties actually performed, and if an award does apply, the contract's inclusive-salary drafting is overridden by award minimums. From there we would pressure-test the hours-and-salary pairing against the workload the role will actually demand and the s 62 reasonableness factors, calibrate any restraints to the employee's real client and information exposure, and check the termination machinery against ss 117 and 119 before anyone signs.

If we are drafting rather than reviewing, the order of negotiation matters: classification and salary structure first, then confidentiality and IP, then restraints, and the boilerplate last. If the inclusive-salary sentence is doing heavy lifting, or the hire is senior, that is the moment to bring in a lawyer, not when a claim arrives.

The clause that decides whether this contract works

The hours-and-remuneration pairing is the drafting choice that most often decides whether a non-award contract works, because it is usually written against an imagined workload rather than the real one. A salary clause that claims to cover reasonable additional hours fails at the moment it matters, in a dispute or a Fair Work claim, if the hours actually demanded are not reasonable under s 62. Draft it last, against the genuine demands of the role, and make sure nothing else in the contract contradicts it.

The rest of what this article introduced hangs off that pairing. The NES sets a floor the contract cannot displace, and for an award-free full-time employee the contract is the main document defining hours, pay for extra time, leave, confidentiality, restraints and the exit process. The minimum employment period and the high income threshold shape what probation and termination drafting can achieve, superannuation at 12% is non-negotiable, and restraints only work if they are reasonable. When the drafting matters more than usual, an Artificer Legal employment lawyer can review the contract before it is signed.