Can Employers Force Employees to Sign Away Protected Award Rates

Hi all,

My partner just started a new job and in the collective agreement she has been asked to sign it says this.

Maybe I am reading it wrong. Seems public holidays and OT are all paid basic rate. Is this even legal?

Public Holidays
a) The following days are Public Holidays: New Year's Day, Australia Day, Good
Friday, Easter Saturday, Easter Monday, Anzac Day, Queen's Birthday,
Christmas Day and Boxing Day or any other gazetted Public Holidays.
b) Employees rostered to work on public holidays will be paid at their basic rate of
pay.
c) There is no substitution of public holidays.
d) The employees and the employer intend that this provision excludes the
operation of protected award conditions dealing with public holidays.

Overtime
a) if you are required to work overtime you will be paid at the basic hourly rate of
pay.
b) The employees and the employer intend that this provision excludes the
operatian of protected award conditions dealing with penalty rates, overtime
and shift allowances.
D. Monetary Allowances
a) The employees and the employer intend that the provisions in this agreement
exclude the operation of protected award conditions in the Restaurant,. &c.,
Employees (State) Award dealing with any other monetary allowances and
penalty rates not specifically referred to in this agreement.

Comments

  • -2

    Hospitality? Permanent employee?

    Seems legal. https://www.fairwork.gov.au/employment-conditions/public-hol...

    • Yes hospitality

      • +4

        b) Employees rostered to work on public holidays will be paid at their basic rate of pay.

        This wording is a bit vague. The info above from avoidfullprice refers to not being at work on a public holiday ie if the person is normally rostered on when a public holiday occurs, and they don’t work because it’s a public holiday they get paid the basic rate they would have earned if they were at work.

        The wording you've provided isn’t clear if this is referring to being at work on the public holiday. If they are working on a public holiday it should be clear if they get extra pay or not and at what rate eg 200% https://www.fairwork.gov.au/pay-and-wages/penalty-rates-allo...

        You can create an online account with fair work and look up registered agreements and ask for advice. I think you can also just call the number and ask for advice too.

        If she can it would be good to ask other employees if a)they signed the same agreement and b) what they get paid for public holidays and overtime. And/Or just ask the employer if they get paid a penalty rate on public holidays and what the rate of pay is for overtime.

        • Hey thanks for picking that up.

          I went a bit further into the award possibly applicable to OPs other half

          https://www.fairwork.gov.au/employment-conditions/awards/awa...

          Paying basic rate on Public Holiday/OT is below the said award, but I suppose if they sign that employment agreement, it is still legally binding?

          Agree talking the employer early would be a good next step.

  • +1

    They probably jack up the average wage per hour (more than the award) that way they can justify no penalty rates.

    I'm not sure about overtime, but it is probably included in that harmonised rate

    • +1

      It's $20 per hour, Im not sure if thats good or not?

      • +4

        Isn't that below min wage?

        • +4

          That's definitely below the award which means it wouldn't satisfy the better off overall test.

          Are they an apprentice by any chance?

        • +5

          Isn't that below min wage?

          Not for a 15 yo….

          • +3

            @jv: OP has been on Ozbargain for a decade, I really hope their partner isn't 15.

      • +1

        That's way too low… Is that some internship/apprentice pay or something?

        • +2

          Unfortunately, a lot of quick-service restaurants use these bogus apprentice/trainee programs that pay peanuts

  • What do you mean by collective agreement? Is there an EBA for her workplace or is this just in her own employment contract?

    • It says on the first page of the document Employee Collective Agreement

      • +1

        If it is an actual employee collective agreement that is registered with the Fair Work Commission then you should be able to locate it on FWC website. First step is to know what the minimum entitlements are so your partner can know whether it is legal or not. Unless your partner is under 21 or entered into an apprenticeship or traineeship it won't be legal based on $20 an hour.

  • +2

    Almost sounds like a slave contract that removes any penalty rates, overtime rates and anything else that increases the hourly rate. It's like one flat rate and nothing else.

    c) There is no substitution of public holidays

    I'm not sure if this makes sense because if a public holiday falls on a weekend, that public holiday is often observed the following Monday. And that Monday is declared as a "Public Holiday" itself.

  • No-one can force anyone to sign anything.

    Just say no ? then move on.

    • +2

      They can’t but it depends how much the person wants/needs a job. Many people feel pressured to agree to poor conditions just to have work.

    • This new job pays alot more then current job and pays super. So no isn't really a option.

      • $20 an hour is a lot more than she's currently getting?

        A company that's using agreements like that doesn't sound like the sort of place that will actually pay super. Oh sure it'll be printed on the payslip but no money will ever actually hit her super account.

      • Where is she working that she's getting less than $20/hr and no penalty rates??

  • +9

    Hospitality for $20/hour with no loading?

    Fk that

  • +4

    Can't be worse off then the award, the terms are illegal…

  • +5

    intend that the provisions in this agreement exclude the operation of protected award conditions in the Restaurant

    Intend to exclude the award?? WTF? You can't just do that because the employee agrees.

    Enterprise Bargaining Agreements must be better than the award and they have to be approved by the Fair Work Commision. You can't just come up with one yourself!

  • +4

    Sounds to me that an anonymous tip to the Fair Work Ombudsman is in order.

  • +1

    The circumstances of your post appear at face value to be unlawful however more details are needed to be sure such as age of your partner and whether is part of an apprenticeship or traineeship. Also to confirm whether business does have a registered workplace agreement (enterprise or collective agreement that will apply to your partner).

  • +1

    Under an agreement (Eba or collective) generally they can ask you to sign away all your extra pay entitlements (overtime penalty rates) but can’t go below the minimum award rates.

  • +1

    Lol @ “required” and “overtime” being in the same sentence. No, overtime is at my discretion, not the employers, especially if there is no extra loading.

  • +3

    Any agreement must pass the "better off overall test (BOOT)" test to be considered legal.

    https://www.fwc.gov.au/enterprise-agreements-benchbook/commi...

    https://www.fwc.gov.au/enterprise-agreements-benchbook/makin...

  • +3

    Been in these shoes before. If you get in touch with fair work they will provide you guidance.
    From memory you cannot be paid less than the award under any circumstances

  • +5

    That’s bullshit. And they wonder why people won’t work for them when they want to pay you peanuts. Bet they won’t pay super either, and earnings amazingly won’t be reported to the ATO

  • +1

    She should not work for someone so obviously dodgy.

  • Why would you ask your employee to sign such a thing? 😋

    Is this the same person?

    • No, different person, that person is no longer in Australia and that was back in 2015

  • b) The employees and the employer intend that this provision excludes the
    operatian of protected award conditions dealing with penalty rates, overtime
    and shift allowances.

  • I would find another place to work as this place sound like they will screw you any chance they get.

  • You would not usually be required to "sign" a collective agreement as the agreement would specify which employees are covered. If it's an individual agreement, that would need signing.

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