Part Time Temporary Contract - Can They Do This?

• 

  [Deactivated] on 23/07/2018 - 18:07

  +16

  You're being told upfront that it is temporary. Honesty.

  You feel that you should be offered a permanent role. Entitlement.

• 

  iratepirate on 23/07/2018 - 18:19

  -3

  Have you read your EB agreement/Award - What does it say? Do you have a union rep?
  They cannot change you from casual to part time and back unless you sign a new contract at each change.
  You should be paid at casual rates until they give you a new contract for permanent part time.

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  Davo1111 on 23/07/2018 - 18:30

  they told you the truth, that's good. Accept it and find a better deal elsewhere

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  HighAndDry on 23/07/2018 - 18:31

  +2

  Does this seem wrong to anyone?

  Nope. You know why? Because you also say:

  The hours I agreed to in the contract

  Didn't like it? Shouldn't have agreed.

  They're being upfront that if you stay with them, you'll be a casual except for the period until 2019 when, because of someone else being on leave, you'll be employed part-time, get all the benefits, and even paid out accrued leave when it ends. You're completely free to turn that down. But if you agreed, then you agreed.

  That's not a hard concept, but it seems more and more people struggle with it every day.

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  Elwes on 23/07/2018 - 19:12

  +3

  Is the shop big enough to have an Enterprise Agreement? Get a copy of it. A lot of agreements give you the right to be converted to permanent part time after a certain length of time on regular casual hours.

  It's quite possible that your rights are shithouse because the Shoppies Union does deals with the supermarket chains to screw over their own members. Join the Retail and Fast Food Workers' Union: http://www.raffwu.org.au

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  Randxyz123 on 23/07/2018 - 19:39

  You chose to sign the contract.

  Personally, if I were you, I'd start looking for another job. They've told you, that you won't get a pay rise or move up to part-time. Sounds like there's not much point staying there.

  Assuming they pay out your leave for temporarily working part-time which I doubt, you'll have a decent amount of savings.

  Start looking for another job soon and give your notice once your colleague gets back.

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  p1 ama on 23/07/2018 - 22:42

  +1

  I was told at the beginning of the year that basically I would never receive a permanent part time contract because there were too many hours in the department. I am however one of the top performers in my team. Whilst casual I was very regularly (95% of the time) doing the hours of a part timer, regularly 5 days a week, 25-32 hours a week.

  So it sounds like your employer has treated you very well then.

  At the start of May, I was given a “temporary hours change” while a team member is on leave till 2019. But have been told that I will 100% lose the contract when it’s up (so the accumulated leave of $3000+ will have to be paid out), but I do not want to lose the guarantee of work. Does this seem wrong to anyone? The hours I agreed to in the contract also very regularly change as well, the working days and hours are always being shifted around just like when I was casual. At this stage I don’t know if this is something that would warrant union attention or something else.

  I don't understand the issue, there are plenty of people who are on fixed-term contracts for employment. For example, I know of people who were hired full-time for 3 years on a fixed-term contract. Whilst I understand this might not be what you want, not being convenient for you doesn't necessarily make it illegal or "wrong".

  I'm not sure what your overall position is though. You seem to switch between saying that your employer treats you quite well (i.e. gives you more hours, offering you a more lucrative contract whilst someone else is away…etc.), but on the same note, you seem to hint that your employer is somewhat dodgy and doing things you don't like.

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  ronnknee on 24/07/2018 - 08:22

  I was told at the beginning of the year that basically I would never receive a permanent part time contract

  They told you upfront and made it crystal clear, and you accepted at that time. Now you're complaining expecting something totally different?

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  [Deactivated] on 24/07/2018 - 08:54

  I'm surprised your employer is doing this, as it opens up all sorts of obligations in regards to continuity of employment. It is more than likely that they will be required to offer you permanent employment, due to your length of service.

  However, the employer must value your performance to make this offer to you. They are also trying to do the right thing by your colleague who will be absent.

  My advice is to accept the new contract, express how grateful you are for this opportunity and that you are keen to retain permanent status once the fixed-term has finished, if possible. Keep your head down, work hard and If it doesn't work out at the end, weigh up your options then.

  Good and honest employees tend to get rewarded.

  • 

    [Deactivated] on 24/07/2018 - 09:08

    +1

    How is this honesty?

    You're advocating accepting the temporary offer in hopes you can use technicality to strong arm your way into a permanent position.

    • 

      [Deactivated] on 24/07/2018 - 09:22

      Due to his continuous employment as a regular casual employee and then on the fixed-term contract, the employer will be obliged to offer permanent employment. This applies to employees in the retail sector. "Technically", this is after 12 months of regular casual work.

      Even at common law, there is a case for continuous employment, which can open up all sorts of issues for the employer.

      it sounds to me that the OP has a good relationship with the employer and that the employer is trying to do the right thing by both employees.

      A lot can and will happen during the course of the fixed-term contract. My advice was to wait and see what does happen and weigh up the options at the end.

      • 

        HighAndDry on 24/07/2018 - 09:34

        Due to his continuous employment as a regular casual employee and then on the fixed-term contract, the employer will be obliged to offer permanent employment.

        Nope. OP has the right to request a permanent position, and only if they're working regular hours over 12 months - neither of which OP is doing. They specifically say they're still getting irregular hours, and that this stint is at most from May to 2019. Even if they do qualify, the employer just needs to give a reason not to give them one, but that's as simple as "we don't have a full time job position vacant."

        http://www.abc.net.au/news/2017-07-05/fair-work-decision-dec…

        Employers can refuse the request on reasonable grounds, including that it would require a significant adjustment to a casual employee's hours of work or they could foresee their position would no longer exist in the next 12 months.

        I mean, in what world do you think companies should be forced to employ someone on terms neither of them has agreed to?

      • 

        [Deactivated] on 24/07/2018 - 09:53

        @HighAndDry:

        The OP has already been there for 1.5 years and works 5 days every week. This is the basic formula for determining continuity of employment. Now the employer has offered a permanent position on a fixed-term contract. So the employer has already committed to further employment.

        The world I live in follows the law, whether I like it or not and most times I don't like it.

        In this case there has been an offer and acceptance of causal employment which has continued in excess of 12 months. Further, there has been an offer of permanent employment for a fixed-term period, with no break implied in the continuity of employment.

        The OP can now say to the employer, that he wants permanent status and as there has been an offer of a fixed-term position, it's hard to deny the request. The problem is then shifted to the employee who is absent and what to do with that person.

        Again, however, my advice was to go with the flow, work hard and who knows what will happen at the end. The employer could well keep the status quo at the end of the fixed-term, the other employee may not come back, the OP may find another job, we could be invaded by China, who knows?

      • 

        HighAndDry on 24/07/2018 - 10:01

        @PhillX:

        A fixed term contract is by definition not a permanent position (you might be confusing it with a "full-time" position, but I'm not even sure OP's current role is full-time since they still complain of irregular hours). And I'm going to quote the exact same line again:

        Employers can refuse the request on reasonable grounds, including that it would require a significant adjustment to a casual employee's hours of work or they could foresee their position would no longer exist in the next 12 months.

        Now let's go back to the OP's situation:

        At the start of May, I was given a “temporary hours change” while a team member is on leave till 2019.

        That sounds like the employer could "foresee their position would no longer exist in the next 12 months" wouldn't you say?

        The problem is then shifted to the employee who is absent and what to do with that person.

        There's no problem there - that employee wasn't terminated, they're just on leave with an entitlement to come back to their position which OP is temporarily filling.

        I don't know how much more I need to spell it out for you. OP has nothing here.

      • 

        [Deactivated] on 24/07/2018 - 10:13

        @HighAndDry:

        A fixed-term contract can be for permanent employment, with all the bells and whistles of permanency, save for most aspects of unfair dismissal.

        By 2019, the OP will have at least 2 year's continuous service. there is currently continuing work available. We actually don't know why the other employee is absent and on what basis is the leave. The OP has a right, under law, to request for permanency and in my view, the employer would find it difficult to deny it.

        However, I was offering advice to be more conciliatory and see how it goes. But no, you are absolutely right, what was I thinking? The OP should suck it up and stop whinging. Nothing to see here.

      • 

        HighAndDry on 24/07/2018 - 10:20

        @PhillX:

        The OP has a right, under law, to request for permanency

        Agreed.

        and in my view, the employer would find it difficult to deny it.

        You know absolutely nothing about the employer's business or their circumstances to be able to say this. The only thing we know is that OP is temporarily filling for someone who will be back in 2019. That in itself is already a valid reason for the employer to refuse to give OP a permanent position. Again, per the same line I've now quoted twice.

        The OP should suck it up and stop whinging.

        Agreed again. Glad we're on the same page.

      • 

        [Deactivated] on 24/07/2018 - 10:27

        @HighAndDry:

        I don't need to know anything about the business. The circumstances allow the OP to make the request, if the employer denies the request, the OP can can take it further, if he so chooses. On what the OP has said, I believe the employer would have difficulty winning the case.

        However, we do only have one side of the story and it is up to the OP to weigh up his options.

        Which page of the little red book are we on comrade?

      • 

        HighAndDry on 24/07/2018 - 10:43

        @PhillX: You realise that the employer has to only give a reasonable reason, and the reasonableness isn't judged according to OP's circumstances, but the circumstances of the employer right? What exactly do you know about the employer to be able to say that:

        the employer would have difficulty winning the case.

        ?

        Even based on what OP has said:

        95% of the time - 5 days a week, 25-32 hours a week

        That's not regular at all; that's almost the definition of casual hours.

        And, again:

        At the start of May, I was given a “temporary hours change” while a team member is on leave till 2019.

        So the position will no longer exist in 2019 once that team member returns.

        This is based solely on what OP has said (your "one side of the story") and even then I can't see how OP has a good case. And again, we still know nothing about the employer's circumstances.

        I'm open to debate, but you've got to give me something and so far you're only saying "the employer will have a difficult case". WHY?

      • 

        [Deactivated] on 24/07/2018 - 11:17

        @HighAndDry:

        The "WHY" are for the reasons I've stated…over and over.

        My view is based on the one continuous period of employment. An arbitrator would look at the fact that there has been continuous employment on a weekly basis, in excess of 12 months. The number of hours are not so relevant, it is the fact that there has been an unbroken period of 12 months or more.

        It is also irrelevant that the fixed-term will end, the OP has already been there in excess of the 12 months minimum. The fact that he was offered a fixed-term contract after he'd been there longer than 12 months, only shows there is work available for at least another 6 months, taking the total period to 2 years of continuous employment.

        As I said, this is based on what the OP has told us. We do not know the circumstances of the person on leave. If for example, the person returns and the OP is told he is back as a casual on the same weekly employment as before, he most definitely has a claim for permanency. It is the regular "weekly" employment that is the sticking point.

        If it went before an arbitrator, then, in my opinion, the arbitrator would see that regular weekly employment is available, the OP has now been there for in excess of 2 years and that he should be converted from casual to permanent. This may mean less hours and a drop in pay, but the security of permanent work for the employee. That is the intent of this particular regulation.

        If there is no work available at the end of the fixed-term, then that is a whole different ball game

        For the employer to show there is no ongoing regular work, the offer to the OP would need to be much more ad-hoc and certainly not on a regular weekly basis.

        It still throws into question the 2 year period of employment and how the law would treat the status of employment in regards to particular entitlements, but again, that is another issue.

        If the OP is so inclined to pursue this matter, I believe he has a very strong case. Whether he wants to is up to him. If he wants permanent employment with this employer, he could just ask and negotiate from there. Much better than pursuing it through a tribunal.

      • 

        HighAndDry on 24/07/2018 - 11:24

        @PhillX:

        An arbitrator would look at the fact that there has been continuous employment on a weekly basis, in excess of 12 months. The number of hours are not so relevant

        Of course the hours are relevant. The hours you work, and how regular they are, effectively define if you're a casual, part-time, or full-time.

        It is also irrelevant that the fixed-term will end

        It's relevant that the position for OP will literally cease to exist. How is that irrelevant?

        It is the regular "weekly" employment that is the sticking point.

        OP themselves say they have irregular work hours - "The hours I agreed to in the contract also very regularly change as well, the working days and hours are always being shifted around just like when I was casual."

        the offer to the OP would need to be much more ad-hoc and certainly not on a regular weekly basis.

        What part of - this is temporary and will cease to exist once the team member returns is hard to understand? OP's original work hours were also irregular.

        Absolutely nothing in OP's post, or their subsequent comments, suggest that they had, or have, regular work hours.

        Sure, your argument looks reasonable if you dismiss everything that goes against it as being "irrelevant", but seriously - work hours is irrelevant to how you classify the work OP does? That's a good one.

      • 

        [Deactivated] on 24/07/2018 - 11:34

        -1

        @HighAndDry:

        Wow, really? I dismissed work hours, really? I don't understand 'temporary"? Really?

        The only thing I find hard to understand is how you don't want to understand anything.

        He is employed by the week, he's been there longer than 12 months, he has regular and ongoing employment.

        You are simply looking at the fixed-term contract only, the regulations in regard to conversion from casual to permanent looks at the whole employment relationship.

        That isn't hard to understand, except for you obviously. it looks like you just want to argue, sorry I'm out.

      • 

        HighAndDry on 24/07/2018 - 11:51

        @PhillX: Just for the record, I didn't neg you. But OP says pretty plainly:

        The hours I agreed to in the contract also very regularly change as well, the working days and hours are always being shifted around just like when I was casual.

        That doesn't sound like "regular hours" to me. I'll end with that.

      • 

        Zachary on 25/07/2018 - 18:01

        +1

        @HighAndDry: PhillX has left the game