Full Timer Pro-Rata Payment Problem with New Employer

gozyla86 on 30/01/2022 - 01:01
Last edited 01/02/2022 - 20:43

Hello all,

I started my new job as a restaurant manager with annual salary 85k + super, and may work up to 45 hours/week. Roughly, I earns 43$/hour before tax on the paper.

My first 2 weeks, I worked ~38 hours/week. I noticed that they divided my salary for 45 hours/week, not 38 as well as pay me as pro- rata basic. I earned 36$/hour before tax.

They did not mention anything regarding pro-rata payment in the contract, nor no-one told me when we were on the discussion phase. My last 3 jobs are pay fix weekly salary.

When I asked them:

  1. They admitted that they failed to noticed me about the pro-rata. But stated that everyone are on pro-rata and the COVID law allow them to do so.
  2. They won't change the amount I earns/hour and if I want to earn 85k, I have to work 45 hours/week. They said that the contract is very clear about the salary and the working hour. And this is what I found on the contract
    " You will be required to work 38 hours per week plus 5 additional hours (total 45 ??) (THEY MADE A MISTAKE HERE) which are reasonably necessary to fulfil the requirements of your duties, or as reasonably required by the Employer"
    "In certain circumstances, and subject to your eligibility, the Employer will recognize these hours through the provision of Time Off in Lieu (TOIL) for any additional hours you work in excess of your ordinary hours, as stipulated in your contract of employment"

Question:

  1. Is the pro-rata COVID changes for Restaurant award still in effect? I could not find any information regarding this except the one from March 2020 (which expired June 2020)
  2. Are they allow to divided my pay by 45 hours as they said? or Am I at wrong here?

Thank you

Update 1: The problem was not only they paid me pro-rata but also pay me less per hour as well. Rather than 43$/hour if you calculates based on 38 hour/week, they calculated 45 hours/week which reduce my income 20%

Update 2: After I requested for a review regarding the mis-led pro rata and the lower then expectation wage, they decided to cut me off.

Education & Work

Comments

  • Benoffie on 30/01/2022 - 01:23
    +4

    If you are actually salaried then hours can vary but still have to be reasonable and within your employment terms.

    If you're on a contract and a per hour wage (sounds like you are) then yeah nah. You work, you get paid.

    Anything else really is a chat with Fair Work

    • gozyla86 on 30/01/2022 - 08:42
      +1

      I am on salaried. But I get paid like pro rata contract

  • vince088 on 30/01/2022 - 02:21

    are you getting paid less?
    45hours a week = 85k
    then
    38 hours a week = 71k?

    • gozyla86 on 30/01/2022 - 08:41

      Yes. Less than what on the contract.

      • vince088 on 30/01/2022 - 12:32
        +2

        that's not your agreed annual salary, contact fair work

  • bobbieb on 30/01/2022 - 08:14
    +1

    I'm confused… OP are you salaried or on an hourly wage?

    If you're on a wage then you should already be aware of your hourly rate, not calculating it from some supposed annual salary.

    If you're salaried and your first pay-cycle on the job was a partial fortnight, then it was most likely pro-rata based on your salary days and working hours per year.

    • gozyla86 on 30/01/2022 - 08:40
      -1

      I am on wages. But they paid me pro rata.

      • bobbieb on 30/01/2022 - 10:40
        +2

        Now I'm doubly confused… you gave two different answers to the same question in the space of a few minutes.

        Your reply to vince088 saying you're salaried, then replied here saying you're on an hour rate.

        What exactly does your employment agreement say…

        1. You'll be paid $x per hour up to a maximum billable of 45 hours (with maybe some rough calculations as to what that means as an annualized pay & super amount)?
        2. Your base salary is $y per year with "reasonable" working hours of no more than 45 hour per week?
        • gozyla86 on 30/01/2022 - 15:08

          As i said, I am on packaged salary which means fix weekly wage. But they paid me per hour. When I asked, they said because of Covid law, they are allowed to pay full time employee pro-rata rates

          • gozyla86 on 30/01/2022 - 15:09

            @gozyla86: The Contract did not state any of the above. Only stated that my yearly salary is 85k + super. And the hour is 38 hours but with reasonable 5 hours extra per week if needed.

  • holdenmg on 30/01/2022 - 08:39
    +1

    Contact Fair Work Australia…
    https://portal.fairwork.gov.au/get-help#/content

    From what I can see there was:
    https://portal.fairwork.gov.au/library/k600684_restaurant-aw… and https://www.fwc.gov.au/documents/documents/awardmod/variatio… but it seems to have expired or not been extended.

  • Hardlyworkin on 30/01/2022 - 08:42
    +1

    Ask them what happens when you work above 45 hours a week? Will you get paid more? Seems like you are on an hourly wage, not a salary.

    If you are the restaurant manager you may not be covered by the award. It only covers positions up to food and beverage supervisor.

    You need to decide on whether you want to continue working there as the salary isn't what you expected it to be.

    • holdenmg on 30/01/2022 - 09:08

      I think there is a problem (or a disconnect) if what the OP thought they were signing up to and what the Restaurant thought, particularly if the "paperwork" was deficient (or inadvertently) misled the OP.

      If it is "industry-wide" then is it worth leaving to go elsewhere, probably no…

      Were the fixed week salary offerings pre-covid or are they still available…
      Are they larger Restaurants? Lots of restaurants have closed or are still struggling.

      • gozyla86 on 30/01/2022 - 15:12

        "Industry-wide", it can be + 10% which roughly 40-42 hours/week which is somewhat acceptable.
        Fixed week salary offering pre-covid. They are not a major big boys but still have reputation in Melbourne

  • AndyC1 on 30/01/2022 - 09:57
    +1

    Time to give up with this employer and get another job with a more reputable and above board company that is not trying to screw employees over.

  • bobbified on 30/01/2022 - 11:41

    restaurant manager with annual salary 85k + super, and may work up to 45 hours/week. Roughly, I earns 43$/hour before tax on the paper.

    If your contract says 45 (or the 43, that is 38+5 that it should be) hours per week, then you take the salary and divide it up by that and that is your hourly rate.

    By the way, it is not an "annual salary" if they're reducing your 'salary' because you're not working the full 45 or 43 hours for a week or two. And if that's the case, then they better pay you when you work more for any particular week. What's going to happen on certain public holidays when the restaurant is closed? Are you going to get paid or not?

  • Summoner on 30/01/2022 - 12:41
    +1

    You will need to read your employment contract thoroughly. From bits and pieces you included in the OP, it could be that the guranteed ordinary hours under your contract is 38 hours. And you may be required for 5 additional hours when necessarary.

    It also appears because of "Time Off in Lieu" clause you may get time off instead of payment for your additional hours.

    Does your contract specify Ordinary hours? Hourly rate? Or Salary?

    Also, if you are i doubt, fairworks gives you free advice on those matter. Call them up.

    • gozyla86 on 30/01/2022 - 15:13

      It is salary. Not hourly.

      " You will be required to work 38 hours per week plus 5 additional hours (total 45 ??) (THEY MADE A MISTAKE HERE) which are reasonably necessary to fulfil the requirements of your duties, or as reasonably required by the Employer"
      "In certain circumstances, and subject to your eligibility, the Employer will recognize these hours through the provision of Time Off in Lieu (TOIL) for any additional hours you work in excess of your ordinary hours, as stipulated in your contract of employment"
      Question:

      • Summoner on 30/01/2022 - 16:26

        Just curious how your pay is worded in your contract… Can you share the payment section (section where your annual salary is shown) of your contract (as shown on your contract)?

        • gozyla86 on 30/01/2022 - 19:15

          "Pay: $85,000.00 per annum with additional superannuation"

          That is what it is on the contract

  • HeroNoone on 30/01/2022 - 20:54

    Hey OP, Pro rata refers to the proportion, or percentage, you as a part-time employee would receive if you worked full-time, you are most likely salaried.

    Talk to your employer again or upload your employment contact to us and we will read it and try to explain what you got yourself into.

    BTW is your restaurant run under enterprise agreement?

  • weezlebub on 31/01/2022 - 12:11

    If you make a big deal of it now, they'll just let you go … even if you win with fair work, it'll just be adjusted for the period you've worked …

    Keep working and looking for a different job … heck, be open about searching for another job and if the boss says "why are you looking for another job" tell them that "this is less money than I was expecting when I signed the contract so I'm leaving my options open"

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