Executive & Managers Contract Review

If you are an executive or a senior manager, we can review and negotiate your employment contract: restraints that could keep you out of your industry, bonus and incentive terms, notice and termination benefits (including the Corporations Act limits in Part 2D.2), confidentiality, and whether you will still have unfair dismissal rights.

We have extensive experience advising executives and senior managers on their employment contracts, both when they are offered a new role and when they are negotiating their exit. At senior levels the contract matters more, because many of the statutory protections that other employees rely on may not apply to you, and the amounts at stake in a bonus, a notice period or a restraint are larger.

Some of the matters we review and advise on are set out below.

Will You Still Have Unfair Dismissal Rights?

Under the Fair Work Act 2009 (Cth), you cannot bring an unfair dismissal claim if no modern award or enterprise agreement covers you and your earnings are above the high income threshold: $190,100 from 1 July 2026 ($183,100 in 2025-26), not counting superannuation (s 382). So for many executives the contract, not the unfair dismissal system, decides what happens on termination. General protections claims (for example, dismissal for making a complaint or for a discriminatory reason) are not subject to that threshold.

If a modern award does cover your role, your employer may offer you a written guarantee of annual earnings above the high income threshold, in which case the award will not apply to you while the guarantee is in place (ss 328-330). You keep your unfair dismissal rights, because award coverage is what matters for s 382, but you should understand what you are giving up before you agree.

In the WA state system (for example a senior role with a WA council or a partnership), the WA Industrial Relations Commission cannot hear an unfair dismissal or contractual benefits claim if no award or agreement covers you and your contract salary is above $212,800 from 1 July 2026 (s 29AA of the Industrial Relations Act 1979 (WA)). See Am I in the state or federal system?.

Restraint Clauses

Executive contracts almost always contain post-employment restraints: a non-compete, a ban on soliciting or dealing with clients, and a ban on poaching staff, each lasting for a set period after you leave. At common law (which is the law in Western Australia) a restraint is void unless it is reasonable: no wider than reasonably necessary to protect a legitimate interest of the employer, such as confidential information, customer connections or a stable workforce, and not against the public interest. An employer cannot restrain you simply to stop you competing. Because senior people usually do have access to confidential strategy and key client relationships, courts are generally more willing to enforce restraints against them than against junior staff. We can:

Assess Enforceability

Advise you on whether each part of the restraint is likely to be enforceable, looking at its scope, duration and area, and how cascading ("step-down") clauses work.

Explain The Consequences

Explain what could happen if you breach an enforceable restraint, including an urgent injunction to stop you working for a competitor.

Negotiate It Down

Help you narrow the restraint before you sign, or negotiate a release when you leave.

Bonuses, Incentives And Equity

We advise on bonus, commission and long-term incentive terms, including share, option and performance rights plans. The key questions are whether a payment is a contractual entitlement or discretionary, what the performance criteria are, and what happens if you resign, are made redundant or are dismissed before the payment date or vesting date (the "good leaver" and "bad leaver" rules).

Where a bonus is bargained for and assessed against set objectives, courts have held that an employer cannot use a discretion to withhold it capriciously, arbitrarily or unreasonably, and that if a bonus was meant to be withholdable even after the objectives were met, the contract had to say so clearly: see Foggo v O'Sullivan Partners (Advisory) Pty Ltd [2011] NSWSC 501 and Silverbrook Research Pty Ltd v Lindley [2010] NSWCA 357. But the wording of the plan decides most cases, which is why it is worth negotiating before you sign.

We can also help you obtain advice on the tax treatment of bonus payments and employee share schemes.

Termination Provisions & Representations

How The Contract Can End

We advise on the circumstances in which your employment could come to an end, the notice each side must give, whether your employer can pay you in lieu of notice or put you on garden leave, and when it can dismiss you without notice. If a contract is silent on notice, the law implies a term of reasonable notice, which for senior roles can be considerably longer than the statutory minimum. But if the contract, or a policy it incorporates, sets a notice period, even a short one, that period applies and no longer period is implied: see Westpac Banking Corporation v Wittenberg [2016] FCAFC 33.

Termination Benefits And The Corporations Act

If you are a director, or hold a managerial or executive office in a company or its related bodies, Part 2D.2 of the Corporations Act 2001 (Cth) restricts the benefits you can be given in connection with leaving office unless shareholders approve them or an exception applies (s 200B). A benefit given in breach is unlawful, which can put a negotiated exit payment at risk, so it needs to be checked before you agree an exit package.

Representations Made To You

Executives are often told things during recruitment that persuade them to accept the role: about bonuses, equity, the reporting line or the future of the business. If a representation is not recorded in the contract, it may be hard, or impossible, to enforce. We make sure the promises that matter to you are written into the contract.

Monetary And Non-Monetary Benefits

As well as your base salary, we review the terms that deal with superannuation (including whether it is included in or on top of your package), vehicles and allowances, salary packaging, insurance, relocation costs, and any clawback clause requiring you to repay a sign-on bonus or relocation costs if you leave early.

Position Description

We review and discuss with you the position description, duties and responsibilities, reporting lines, key performance indicators and other matters that relate to performance. A clear description protects you if your role is later changed, diminished or made redundant.

Confidential Information

We advise on what the contract defines as confidential information, and whether information, contacts or know-how you are bringing into the new role should be carved out of that definition. If they are not excluded, you may be prevented from using them after the employment ends. Senior employees and officers may also owe duties of confidence and fidelity, and (for directors and some senior managers) fiduciary and statutory duties that continue in part after they leave.

Redundancy

We review the redundancy provisions and discuss whether you are satisfied with the severance they provide. Executives often negotiate packages more generous than the minimum redundancy pay under the National Employment Standards (4 to 16 weeks' base pay, depending on service; see redundancy pay). Remember that the National Employment Standards minimum does not apply at all if your employer is a small business employer, and in the WA state system redundancy pay comes from the Termination, Change and Redundancy General Order (for employers with 15 or more employees) or your award or agreement, not from the Minimum Conditions of Employment Act.

Company Policies

We discuss how the company's policies affect your employment, whether they are said to form part of your contract, and whether you have been given copies. We discuss the risks associated with potential policy breaches and how you can minimise them.

If you are about to sign a senior contract, or are negotiating your exit, contact us for a free confidential discussion. You can also call us on 08 9470 2777.

Case studies