Navigating messy employee issues takes more than just good awareness of the workplace. It takes clear thinking, experience, solid advice, and ideally, an employment lawyer who isn’t distracted by the ins and outs of workplace drama. Someone who can see the relevant facts, spot the risks, and give you a straight answer.
Another thing that can be helpful to have tucked in your back pocket is a well written employment contract that does some of the heavy lifting for you.
There is something very powerful about being able to point an employee to a clause in their contract that covers the exact scenario under consideration… This has helped my clients avoid bigger headaches more than once!
So, what exactly should your employment contract include? Here are the top 5 clauses I think every employer should have up their sleeve.
Clause 1. Out of hours social media use
Bullying and harassment are not just things that happen within work hours. We have had countless examples over the years of improper communications between employees that occur both inside and outside work hours but lead to issues which spill into the workplace.
Messages sent in work related group chats can quickly become gossip and lead to exclusion. Friendship breakdowns can cause hostility and communication issues within teams.
And of course, there can be unwanted calls, texts or DMs outside of work, particularly where there’s a power imbalance, such as a manager to a direct report.
Employers need to consider anything that might create a risk to health and safety in the context of the workplace and addressing this out of hours conduct is often part of fulfilling that duty.
As a bonus point, don’t forget that banning your staff from posting anything related to work on their personal social media (stories, photos) is important so that there is no misunderstandings about what is and isn’t allowed.
Clause 2. Asking for permission before working overtime
This clause is a quiet achiever, but don’t underestimate its power. We often work with clients to choose between hourly rates and salaries, audit pay rates and Award compliance, and one of the trickiest issues that still crops up is unapproved overtime.
Picture this: an employee keeps a secret diary of extra hours worked, then submits a claim for underpayment or TOIL (time off in lieu) sometimes years later. It’s hard to verify whether the overtime actually happened, and it puts the employer in a tough spot. The trust in the relationship can take a serious hit on both sides.
A simple clause requiring prior written approval for overtime can help protect against this. It sets a clear expectation that extra hours need to be authorised in advance, not logged silently for future use.
Clause 3. Communicating travel arrangements
This one has made its way into our top 5 after an astounding number of people contacting us about accidents that occur on a work trip which is partly personal and partly business related.
Who pays for a claim where someone is dropping their kid at the grandparent’s house and then getting petrol before heading off to a work conference but gets into an accident due to another driver’s carelessness?
What about where an employee is driving from home to a client site and they decide to stop for a coffee on the way. Just outside the café, they slip on a wet floor, injure their wrist, and end up off work for two weeks. Who pays for this one?
Being clear about what is and isn’t part of approved travel can help you out here.
Clause 4. Asking for permission for side hustles
Depending on what you read, either side hustles are on the rise because of the cost of living. Or they’re on the decline because the side hustle e-commerce store isn’t making as many sales as it was because of, you guessed it, cost of living.
We have been called on to give advice on employees who return calls and make post office trips on their lunch breaks, often returning late. Or they come into work exhausted because they were up until midnight working their second job and keep making mistakes.
Having a clause which requires employees to ask for permission can help spark the conversation which sets expectations upfront. It also helps identify conflicts of interest that employees might not have considered.
I remember all the way back in my first law job, I was still working Thursday evenings and Saturday mornings at the local BP truck stop doing waitressing. My law firm boss asked me to stop doing these extra shifts. I reminded him that he might need to pay me more than $11 an hour. It worked. I ended up shredding old files on Saturday mornings instead and being paid a whole $16.50 per hour.
Clause 5. Garden leave for investigations
Garden leave is when you direct an employee to not attend work, contact clients or access systems. Instead, they stay home “gardening.” They are paid as normal, are on call and technically remain at work, they just don’t actually come to work.
Garden leave is important when you want to complete a workplace investigation into sexual harassment, bullying and other issues in the workplace that require a bit of time and sensitivity.
In reports from April 2025, Google is said to be using garden leave to pay AI development focused employees from their DeepMind project to not work for anyone else as an interesting approach to getting around bans on non-compete clauses. Google don’t have any work for them to do, but don’t want them working for their competitors either. Their solution is to keep them on garden leave for up to 12 months. This is not usually what we use it for but perhaps a creative solution to the upcoming law change to add to your thinking.
Final thoughts
At the end of the day, no employment contract can predict every twist and turn in the road, but the right clauses can make a huge difference when things get bumpy. From tricky overtime claims to blurry lines between work and personal life, these top 5 most useful clauses can give you something solid to rely on when things go sideways.
They set clear expectations, protect both parties, and best of all, they can help you resolve issues early, before they become full-blown legal dramas.
If it’s been a while since you’ve reviewed your contracts, now’s the time to reach out. And if you’d like a second opinion on a tricky situation, we’re always here to help. Contact Sarah, Business Lawyer today.
