Is This a Legal Pay Practice?

Chef Freeman on 14/04/2022 - 18:33

Hi guys
I'm working in a kitchen doing 38hrs a week
Sometimes working weekends and doing overtime, I work under the hotel agreement 2014 which can be found here

For ease sake I earn $16/hr as an apprentice
On Saturdays the penalty rate is 1.2x the normal pay so $19.20/hr
And on Sundays the penalty rate is 1.5x the normal pay so $24/hr
I do a couple hours of overtime a week, which is 1.3x so $20.8/hr

The way they calculate pay with overtime and penalties is by bundling my overtime and penalties together as double time which means I'm not getting the correct amount as far as I'm aware
So for example
I work 27 hours during the week and do 4 hours overtime during that period, and I do a 9 hour shift on Saturday at a 1.2x penalty,
They'd calculate my pay by adding subtracting 4 hours of overtime, and 4 hours of Saturday penalties and bundle them together as double time
Then leave the 5 hours of Saturday penalties as usual
Meaning I'm missing out on $32, for that week
Its a small amount but for apprentice wage, and overtime it adds up
I've had a look through the agreement and cannot find anything saying that this is part of it
Can anyone help please?

Tldr: company is bundling penalty rates and overtime and paying me less
Thanks
Morgan

Education & Work

Comments

  • randomusername2017 on 14/04/2022 - 18:51

    48.7.2 seems relevant.

    Although it's also a rolling 4 week cycle, so they could eliminate overtime by juggling the roster.

    • Chef Freeman on 14/04/2022 - 18:59

      The head chef in the kitchen does the roster so its always 38hrs a week no matter what we do the week before
      I must of read that wrongly then
      I read that as overtime is seperate to all the other pay penalties

  • randomusername2017 on 14/04/2022 - 19:07

    and do 4 hours overtime during that period

    Overtime meal allowance paid?

    • Chef Freeman on 14/04/2022 - 19:09

      Negative, I have my 1hr break each day,with a meal, but nothing in relation to overtime meal allowance

      • randomusername2017 on 14/04/2022 - 19:21
        -1

        I work 27 hours during the week and do 4 hours overtime during that period

        50.1Overtime Meal Allowance 1:A team member required to work more than 1hour of overtime after their rostered time of ending work, where less than 24 hours’notice of such overtime has been given, shall be paid a meal allowance

        Normal rostered hours?.. might also be eligible for evening loading, cold work etc

        • Chef Freeman on 14/04/2022 - 19:35

          For example Im rostered 11.30-8.30pm
          Sometimes I work 11-9pm
          Or 10-9pm etc.
          Don't think I'm eligible for evening loading

  • Settero on 14/04/2022 - 23:04

    Pretty sure penalty rates don't stack , you get the higher rate eligible

    • Chef Freeman on 14/04/2022 - 23:45

      So I should be getting my OT and weekend penalties separately?

      • pao2x on 15/04/2022 - 12:15

        You get the penalty rate that applies which is highest and the highest one only, for each hour or applicable time period

        • Chef Freeman on 15/04/2022 - 15:02

          Even though they are seperate days?

          • Settero on 15/04/2022 - 22:41

            @Chef Freeman: Still not sure what your expectations are, sounds like they are paying you 4x norn hours for the OT you did during the week and then paying you double rate instead of 1.2 for 4 hours sat.

            4x .8 is higher than 4x .3 ? Sounds like you are better off no ?

            If this doesn't answer you , please tell us what rate you expect to receive for the 4 hours OT and also for the Saturday

            • Chef Freeman on 16/04/2022 - 16:27

              @Settero: Hey mate
              What is happening is I'm doing 4 hours of OT (1.3x) during the week
              Then working 9 hours on Saturday (1.2x)
              They are subtracting 4 hours from Saturday and bundling the OT (which I did during the week) and the 4 hours of Saturday pay into double time
              Which should be 2.5x not 2x

              So I'm effectively missing out on $8/hr as far as I'm aware?

              Its worse on Sundays, as they do the same thing

          • pao2x on 16/04/2022 - 01:41

            @Chef Freeman: Highest penalty rate. Choose one that applies. Everytime there is an overlap you choose the higher one but only one

            • Chef Freeman on 16/04/2022 - 16:23

              @pao2x: The overtime is during the week not on Saturday so I should be getting overtime and Saturday seperately? Correct

              • pao2x on 16/04/2022 - 23:13

                @Chef Freeman: Correct different times/ dates

                • Chef Freeman on 17/04/2022 - 00:28

                  @pao2x: Yep, that's not what is happening
                  So I'm going to contact fair work and find out
                  Everyone else is getting the same treatment in the kitchen..

  • AlienC on 15/04/2022 - 02:37

    Sorry for leeching onto this thread but are casuals entitled to lunch breaks if they do more than 8 hours in a day but split up into 2 shifts

    • Soluble on 15/04/2022 - 09:28

      If it's split into 2 shifts you have a break?

    • Chef Freeman on 15/04/2022 - 14:59

      I believe they do

  • GordonD on 15/04/2022 - 11:34
    +1

    A union could help. If you were a member of one. Alternatively you could raise the issue with the Fair Work Ombudsman (https://www.fairwork.gov.au/).

    • Chef Freeman on 15/04/2022 - 14:58

      I'm unsure if there is a union in the company
      I'll have a talk to fairwork

  • Webber000 on 15/04/2022 - 12:24
    +1

    I work 27 hours during the week and do 4 hours overtime during that period, and I do a 9 hour shift on Saturday

    27+9=36 not 38, so if you are contracted for 38 then your 4 hours of overtime is actually just 2 hours at standard rate and 2 hours of overtime?

    • Chef Freeman on 15/04/2022 - 14:58

      Apologies I meant 29+9 not 27 I do the 38hrs and do 4 hours OT

  • randomusername2017 on 16/04/2022 - 05:49

    29* 16= 464 base weekday hours
    4* 20.8=83.2 ot accrued daily
    9 * 19.2= 172.8 Saturday rate

    $720

    29 * 16=464 base weekday
    5 * 19.2= 96 Saturday rate
    4 * 32=128

    $688

    Are these the calculations you are comparing?

  • randomusername2017 on 16/04/2022 - 16:57
    +2

    Assuming that's the correct award, looks like payroll software is setup for >38 = ot rate.
    Raise the issue internally first HR/payroll not on site, if you don't get resolution obtain advice from fairwork

    • Chef Freeman on 17/04/2022 - 00:30

      Shouldn't be taking away my weekend rates though considering I didn't do OT on the weekend
      Its stupid imo

    • Chef Freeman on 17/04/2022 - 00:30

      I'll give them a email Tues morning

  • Vote for Pedro on 16/04/2022 - 21:48

    What did your union advise?

    • Chef Freeman on 17/04/2022 - 00:28

      Don't have one as far as I'm aware

      • Vote for Pedro on 17/04/2022 - 10:15

        I mean, it says it right there in the agreement you posted in point 1 of the decision.

        United Voice is the union. They are now known as United workers union. https://unitedworkers.org.au/contact/

        Join your union. That’s what they are there for. Otherwise, you’re on your own against the conglomerate.

        • Chef Freeman on 17/04/2022 - 23:33

          I'll contact them Tommorow thanks

          • Vote for Pedro on 20/04/2022 - 16:32

            @Chef Freeman: How did you go?

            • Chef Freeman on 25/04/2022 - 21:52

              @Vote for Pedro: Waiting for a response, emailed them on friday, if I don't get a response by Wednesday Im just going to go to fairwork,
              They're changing over award rates soon so I want to get it sorted before then

              • Vote for Pedro on 25/04/2022 - 22:19

                @Chef Freeman: Are you a member, did you join?

                • Chef Freeman on 25/04/2022 - 22:38

                  @Vote for Pedro: No, didnt have any indication about it when I signed up, although that was 3 years ago so I'm not sure if I skimmed over it

                  • Vote for Pedro on 26/04/2022 - 09:02
                    +1

                    @Chef Freeman: That’s a shame. Not sure why they would help you if you aren’t a member. Why don’t you join now?

                    It’s kind of like nrma/racq/ravc. You gotta join to get help.

                    When your new agreement is negotiated they are the ones doing it, and the more workplace members, the more powerful their negotiating is.

                    • Chef Freeman on 26/04/2022 - 11:46

                      @Vote for Pedro: I'll have a look, I'm in talks with HR right now
                      They're usually good with sorting out issues so if it doesn't go well I'll join/contact the union

  • freefall101 on 17/04/2022 - 09:38

    Check your work contract and how your salary lines up to the award. Basically, are you being paid above award? And does you contract mention they’re paying you a blended rate that covers some shift amounts? Very common in hospo, they’ll pay you a couple of bucks more an hour then not the extra for some shifts.

    Otherwise, talk to the payroll team first too. Often they have no idea what they’re doing, just punching in numbers and it’ll spit out whatever and they pay it.

    • Vote for Pedro on 18/04/2022 - 12:36

      If theres an enterprise agreement, the award doesn’t apply unless clauses are specifically referenced in the enterprise agreement

      • freefall101 on 18/04/2022 - 20:10

        EA or contract, same applies. They're allowed to put in a blended rate that covers all the usual holidays.

        Award always applies as the base minimum wage. Fair Work, at least in theory, apply the no worse off rule, you can't put anything in the EA that makes you worse off than the award. But it would explain OPs situation, if they expected loading per the award but are really on higher pay due to their contract/EA

        • Vote for Pedro on 18/04/2022 - 21:24

          You make absolutely zero sense. If an EA applies, the award does not as the EA has gone through BOOT.

          A ‘contract’ cannot override an EA if the employee is covered by the EA unless there are allowances for specific exclusions. These are rarer than hens teeth though.

        • cookie2 on 19/05/2022 - 07:20

          Correct re no worse off rule. Flight centre got in trouble with this a few years back.

  • Chef Freeman on 26/04/2022 - 12:37
    +1

    During this period you worked a total of 167 hours. Over time kicks in when you hit 152 hours.
    ​
    You didn't hit 152 hours on the Saturday. Overtime occurs when you hit this threshold. The first two hours of overtime are paid at 1.5 then it is paid at 2.0 after that.
    ​
    The last 13 hours you worked were all paid at double time.
    ​
    If for example you hit 152 hours on the wednesday and then worked Thursday,Friday, Saturday, Sunday then you would of been paid double time on all of those days.

    This is from HR, regarding the same question
    I guess it's all sorted now

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