QLD Employee Rights - Can Employer Recover Recruitment Costs from Employee?

[NMN]

In my letter of offer is the following sentence "Should you decide to leave upon your own accord within this time frame (24 weeks) we will look for you to repay the recruitment costs". I signed this (there was no mention of the amount). Is this enforceable under Australian employment law?
I read an article that said the following:
"The Fair Work Act (s172) provides that a permitted matter in an enterprise agreement pertains to the relationship between the employer and the employees to be covered by the agreement. This means that for a term to be enforceable, it must pertain to the employment relationship.
A term that allows the employer to recover recruitment costs would be unenforceable, because it does not pertain to the relationship between the employer and the employee. Such a term instead would pertain to the relationship between the employer and the recruitment agency. In these circumstances, the Fair Work Commission (FWC) would not approve the enterprise agreement because such a term would fail the Better Off Overall Test (BOOT). See: Radploy Pty Ltd t/a Lake Imaging [2011] FWA 39."
Thank-you

 

[Paul Cott]

NMN,

As per an enterprise agreement it would probably not be enforceable.

But if you signed it as part of your contract then subject to some limited exceptions to do with validity of contracts, I think this may well be enforceable, particularly if, or as, the enterprise agreement and contract both operate to govern your working terms and conditions.

Paul.

 

[Sophea]

Dear NMN,

Further to Paul's comments, do you have an actual contract of employment in addition to the letter of offer? If not its likely the letter of offer will constitute the basis of your 'employment contract' if you choose to accept the position, as it sets out the terms of your engagement.

Your contract of employment can contain rights and terms above and in addition to those under your Enterprise Agreement, so if the term regarding recruitment costs is contained in the contract of employment as opposed to the EA then it may be enforceable. Your enterprise agreement simply sets out the minimum conditions that apply to a group of workers, and may contain terms different to those in your contract.

 

[NMN]

Hi Sophea,

I do also have an 'Employment Agreement' which does not mention this at all.

Thanks!

 

[Rod]

I do also have an 'Employment Agreement' which does not mention this at all.

You are on fairly safe ground. Assuming the contract was signed by both parties AFTER the letter of offer was received, the contract replaces all previous correspondence. The employer may still want to sue you to recover money he thinks is owed but you have a very good case and can recover costs if you win any subsequent court case.

I'd be telling the employer that the employment contract does not allow him to recover money and that you will defend any attempt to recover costs.

 

[Sophea]

Yes general contract law states that subject to a few exceptions, where the parties to an agreement have recorded their contract in writing, extrinsic evidence will not be admissible to subtract from, add to, vary or contradict the written terms. So if the employment contract says nothing about paying the recruitment fee, then it will not be a term of the agreement simply because it was mentioned in pre-contractual negotiations.

 

[Sarah J]

Hi NMN,

I agree with the others above. If your employment contract does not mention the reimbursement then it would seem unlikely the employer can recoup the costs expended on a recruiter. In most cases, the costs are born by the employer or recruiter depending on the contract between employer and recruiter (e.g. it could be the case, as is the case in some company/recruitment contracts, that the employer does not actually need to pay anything if the employee recommended by the recruiter does not last beyond the trial period).

To avoid doubt, I'd recommend giving the Fair Work Ombudsman a call.