Can employer ignore the Award Rate etc.? Information Regarding IT Professionals

xseta on 04/08/2023 - 16:55
Last edited 04/08/2023 - 17:30

HI OB Gang!

I'm unsure if this is the right place to ask this question, but here we go!

Some background: I've been offered a role as a first direct hire IT Tech/Admin/all-in-one part for a non-IT company. I wondered if anyone had experience with the Professional Award standards and contracts.

The offer contract advises the following:

Your ordinary hours of work are 38 hours per week during standard business hours. You agree
that those hours are reasonable, taking into account your personal circumstances and the operational
requirements of our business.

Given the nature of your role, you acknowledge that from time to time you may be required to work
reasonable additional hours, in order to perform your responsibilities and duties, including work on
evenings, weekends and public holidays.

Your remuneration has been set at a level that takes into account your ordinary hours and any additional
hours you may be required to work to perform your duties. You are not entitled to any additional
payment for overtime or any other work performed in addition to your ordinary hours.

In addition, it also lists the following:

Your remuneration is made up of:
the base salary set out in Item 7 of Schedule 1;
the superannuation contributions in accordance with clause 6.5;
the benefits listed in Item 8 of Schedule 1 (if any), including FBT on the benefits if applicable.

Your remuneration includes all amounts due to you under any industrial award, agreement, contract,
the Act or other law.

Your remuneration for any pay period can be set off against and expressly applied in compensation of
all award and any other legal entitlements for work performed during that period.

From what I can understand, the professional award lists that if you earn under $102,000 per year, you are entitled to Overtime, TOIL, on-call, etc.

Award Info @Fairwork

IT Classification info @Fairwork

The role is just a little more than the award rate but well and truly under the $102,000 mark.

Is the contract abiding by the Award? It's super confusing, and I would appreciate any advice to anyone who has encountered something similar and has any pointers in approaching the hiring manager regarding it! Or if there's any resource, I should look at online!

Am I just saying go away award? Based on this statement:
Your remuneration for any pay period can be set off against and expressly applied in compensation of all award and any other legal entitlements for work performed during that period.
Is it normal for employers to get out of award rates with statements like this?

Thanks!
Oli

Education & Work

Comments

  • deme on 04/08/2023 - 17:07
    +2

    Why don't you ask your union?

  • pyramid on 04/08/2023 - 17:10
    +9

    You are not entitled to any additional
    payment for overtime or any other work performed in addition to your ordinary hours.

    I dont like this particular section..

    • xseta on 04/08/2023 - 17:15

      Yeah, it's a little daunting, as I see a lot of handover from the MSP (Managed Service Provider.) looking after the company.
      From what I had spoken about with the hiring manager and goals related, numerous business-wide upgrades are needed, and almost none of those could happen within standard operating hours.

    • JimmyF on 04/08/2023 - 17:17
      +3

      Thats what being on a 'salary' is all about…… Fixed payment.

      • xseta on 04/08/2023 - 17:34

        Is it normal for employers to just be like screw the "award" you get what you are given? Remember that this particular role pays less than 5% over the award rate, but it is more.

        • JimmyF on 04/08/2023 - 17:38
          +3

          Not sure how they are 'screwing' the award when you are being paid OVER the award rate.

          It's very common to be paid a 'salary'. Basically you are paid to do a job, that might mean one week you have to work 2 hours overtime to do your job, that is unpaid.

          If you don't like the terms or the money or the job, then don't take it.

          • jetblack on 05/08/2023 - 08:35
            +3

            @JimmyF: How wonderful it must be to live in your black and white world.

            • JimmyF on 05/08/2023 - 10:24
              +2

              @jetblack: It is black/white in the eyes of Fairwork aka law. The OP would be paid the above award if they took this job, it doesn't matter how much above, just that they are above award rates. So that set of rules don't apply.

              Its also a Salary job. Very common in the IT world.

              • hudrob on 05/08/2023 - 16:37
                +1

                @JimmyF: As someone who's worked on a salary in IT for nearly 30 years now ((profanity) I'm getting old), starting with a salary of $17,200, now.. more :) ), I can safely say that a salary does not make it fair that ALL overtime is unpaid or not compensated for. Sure, incidental overtime might be, but any more than a few hours a week (and particularly if it's a late night of a significant number of hours), there needs to be give or take - either an on-call allowance (or payment for the hours when called, or ideally both), or an agreement on time off in lieu.

                A salary is not a "get out of being reasonable" card for an employer. If they're unwilling to negotiate and you have NO other prospects, by all means take the job, but be actively looking for a replacement with fairer conditions.

                • JimmyF on 05/08/2023 - 17:58
                  +1

                  @hudrob:

                  someone who's worked on a salary in IT for nearly 30 years now

                  Same, IT salary job

                  I can safely say that a salary does not make it fair that ALL overtime is unpaid or not compensated for. Sure, incidental overtime might be, but any more than a few hours a week (and particularly if it's a late night of a significant number of hours), there needs to be give or take -

                  Reasonable hours to do your job like you said 1-2 hours a week is fine, I'm paid far too much to start with that 1-2 hours a week is ok by me. But scheduled work out of hours is always TOIL.

                  People seem to think this line means they can ask you to work 7 days a week 12 hours a day and you suck it up. Nope, it means you do your set hours and a 'reasonable' amount of overtime might be factored in to do your job if you can't get it done in those hours.

                  either an on-call allowance (or payment for the hours when called, or ideally both), or an agreement on time off in lieu.

                  Oncall unless listed in the terms and already factored in to the money is always an 'extra' payment.

                  Reminds me of a 'day contact' rate I did once and they wanted me to do scheduled work in the evening after I had gone home. They borked when I said that it is billable task and will need to be approved before I start the work. They are like you are on a day rate, I said yes, read the terms day rate means 8 hours and a reasonable amount overtime if required ie something broke and I need to stay back and fix it. Once I go home, my day is finished. It doesn't mean I work 8 hours and then another 4 hours in the evening.

                  They paid my hourly rate for the scheduled work and reviewing the contract ;)

        • ColtNoir on 05/08/2023 - 14:57
          +1

          It’s very common for employers to ‘buy’ those rights from you by paying more. They never actually tell you at what cost though.

          FSU is currently fighting CBA on this and wanting them to disclose the amount difference between contract types.

          They could buy it out for $1 more than award if you’ll agree to it.

      • JimJim on 04/08/2023 - 20:15

        Not really - your salary reflects your experience and responsibilities. The terms should not matter in relation to what your salary is. Overtime is overtime.

        • JimmyF on 04/08/2023 - 20:21
          +1

          your salary reflects your experience and responsibilities

          What you are paid, hourly or salary has always reflected your experience and responsibilities. Being on a salary doesn't change this.

          Overtime is overtime.

          Not when on a salary… It's already factored in. Have to do an extra hour tonight to meet a deadline, you have already been 'paid' for that as such.

          Your remuneration has been set at a level that takes into account your ordinary hours and any additional hours you may be required to work to perform your duties

    • SlartiBartFozz on 05/08/2023 - 13:40
      +1

      All the employment contracts I've had use similar wording, which appears to be technically in breach of the law, but then the employer can only 'ask you' to work overtime, they can never 'force' you to work overtime. Given that, you are free to leave at the end of your 7 hours and 36 minutes have concluded (excluding any unpaid break times).

      Unscrupulous bosses / managers will exploit every last drop of patience, good will and positive spirit from you, and it never stops with just one day. Of course, there might be times when a server catches fire and you have to help douse the flames, because key clients/customers are depending on you. But your managers are there to manage projects/timelines, as such they need to plan resources so staff aren't being screwed over for their sloppy managerial skills.

      Some people have no home / life balance, and stay back out of the goodness of their hearts, but the managers always exploit that and many use it as leverage to coerce other staff to stay later. You have to be resolute, and it's best if you start and leave when most other staff members do, to avoid that slippery slope.

  • stickingly on 04/08/2023 - 17:22
    +10

    This looks like every job i have done or seen in my IT career of more than 20 years. It is tbe nature of the job to require after hours work and I have ever been paid overtime, just informal time in lieu of varying degrees.

    • xseta on 04/08/2023 - 17:27

      Thanks for sharing, mate!
      From how I understand it now, it looks like this is it.
      I came from a heavily regulated industry, where every hour was logged etc. OT was to the 15 mark etc. and from what I'm understanding because they are paying slightly higher than the base award rate, then you get no OT etc.

      • CheapandUsed on 04/08/2023 - 17:39
        +3

        That's where it can get complicated and is the source of (one of) the underpayments by Woolworths.

        Essentially if you paid the store managers the award rate for all the hours incl. Overtime they worked, plus any other allowances that the award had for their hours worked. The salary they were being paid worked out less than what the "lower" award wage would have added up to.

        I'd probably just ask innocently what is the award they are referring to and then calculate from there.

        • Hardlyworkin on 05/08/2023 - 10:51
          +2

          Spot on. Op need to know his award rate and applicable extras to work out how many hours each week the salary covers.
          Op; always keep your own record of your hours. If there isn't a record, it didn't happen.

    • xylarr on 05/08/2023 - 16:04
      +1

      Time in lieu is the best you can hope for. On the other hand, if you repeatedly had to do weekend work, you would look to talk with your management to arrange either coming in later/leaving earlier during the week, or making sure you take a day off for each day you work over.

      The problem with time in lieu is it is often informal. The "rule" there is you had better take it sooner than later. No point asking for a day off for that weekend work you did six months ago.

      Ultimately, it is up to you to push back if the time you are working creeps up to be significantly above your contracted hours.

      • stickingly on 05/08/2023 - 17:18

        Agree 100% with this.
        You don't want to be the pushover who always says yes when there is after hours work, because then you end up being the one who does it.
        But you also don't want to come across as "difficult" by watching the clock and pushing back all the time, and won't get far with this approach, so need to find the balance.

  • sumyungguy on 04/08/2023 - 17:37
    +2

    Where you could be agreeing to work flexible hours to accommodate the needs of the business, they're requiring you to work extra hours for NO remuneration. You should be entitled to TOIL.

    • xseta on 04/08/2023 - 17:43
      +2

      At the very least, I would have thought TOIL would have been listed in the contract!

    • Hardlyworkin on 05/08/2023 - 10:59

      Instead of being paid the award rate, Op is paid extra upfront to compensate for the expected extra hours. This is fine provided the extra is actually more than he would have received under the award.

      • xseta on 05/08/2023 - 15:40

        Doing the math, If I worked an extra 2 hours per week (100 hours in 12 months). The pay would actually be under the award.

        • Hardlyworkin on 05/08/2023 - 17:42

          That's cutting it fine. Make sure you keep a record.

  • Drakesy on 04/08/2023 - 17:44
    +2

    Pretty standard contract tbh.

    The only catch is the definition of 'reasonable'

    And yes my contract has almost the exact same wording.

    If you're above award rate then unfortunately what you get is what you get. The only recourse is if you
    a) start doing regular weeks above 38 hours
    b) end up working outside your allocated work hours consistenty.

    • mskeggs on 04/08/2023 - 21:04
      +1

      My contract says it too, but I’d want a lot more than 5% over award in exchange to this level of flexibility.

      For what it is worth, I think if they did work over time and out of hours shifts that amounted to award payments totaling above their total salary I can’t see how the employer would be able to refuse them.

  • brendanm on 04/08/2023 - 17:45
    +3

    Salaries are garbage.

    • xseta on 04/08/2023 - 17:52

      Yeah, this is my first salaried job, so It's interesting.

      There's also a section regarding "Performance."

      Your performance will be reviewed in each calendar year in accordance with the Company’s
      performance review practices in force from time to time.

      Subject to clause 7.3, your remuneration will be reviewed in each calendar year in accordance with the
      Company’s remuneration review practices in force from time to time, however this does not necessarily
      mean it will be increased.

      If your Commencement Date falls on or after 1 January, your first remuneration review will take place
      in the following calendar year.

      So, I'm assuming no bonus or profit share, which I thought would be more normalised with a salaried role.

      • [Deactivated] on 04/08/2023 - 21:50
        +2

        LOL

        You were outperforming everyone else by 150% but that's exactly what was expected from you, so you get "meet expectations", bonus or payrise are only for those who "exceed expectations" (aka manager's mate).

    • pegaxs on 05/08/2023 - 08:34
      +2

      I agree… only worked one salaried job in my life. Never again. Contracted to do 38 hours and “reasonable overtime if required…”

      3 months in, my average week was 52+ hours with some up to 60. Across these hours, I was earning less than the people I was managing.

      • brendanm on 05/08/2023 - 11:31
        +1

        It only benefits one person, and it's not the employee. No leave loading either I believe.

  • freefall101 on 04/08/2023 - 18:22
    +6

    Basically yes, they're allowed to do this.

    Your remuneration has been set at a level that takes into account your ordinary hours and any additional hours you may be required to work to perform your duties. You are not entitled to any additional payment for overtime or any other work performed in addition to your ordinary hours.

    Basically what this means is your salary is already inclusive of your overtime. However the caveat is they're still not allowed to pay you under the minimum award wage. So if you take the hours you worked and calculated it out under the award rates you still have to be paid at least that. Essentially it's a lazy way of not paying overtime.

    The key thing is to track your hours, put it in a spreadsheet, measure out the wage and make sure you're not being paid under award. If you are being paid under award, go to them, tell them and they'll likely just pay you more or tell you to cut back on overtime, or you can take it to fair work.

    edit: An example. Award rate is $10 an hour. You're being paid $15 an hour. Work 38 hours, they need to pay you at least $380 and they paid you $570, all is good. However lets say you work 60 hours that week. You should get at a minimum $600 (likely a lot more with overtime rates and such). They only paid you $570, so they need to make up the difference. It's more complicated than that because it's averaged over a month and such but that's the basics of it.

    Reality is your salary is less than you think it is, because it already has overtime rolled into it. Welcome to the shitty world of a salary position.

    • dtc on 05/08/2023 - 15:34

      Yes, this is the correct answer. A few years ago a few law firms got caught- they were paying grads something like $80k, which was way above the award. However the hourly award rate X the hours actually worked meant they were being underpaid and so were entitled to additional payment

      Essentially the pay above reward is an allowance covering some OT (so you don’t get OT every time you work longer hours, it’s already covered). But if normal hours + extra hours over the year (at the award rate) exceed your pay, you are entitled to extra.

      • tonka on 06/08/2023 - 00:56

        Not just a few law firms. It's a big part of the problems Coles and Woollies has faced with Fairwork.

        • smalltime0 on 06/08/2023 - 21:08

          I don't get how companies didn't wake up to this being a ticking timebomb.
          Coles and Woolies with their legions of lawyers had to pay, and pay big. Then it is up to them to go back and contact everyone affected by this, work out how much they should be paid and by financial year and pay them. This is not just hours*pay at the time which is the bulk of it, its also minor little allowances that all add up to hundreds to thousands per affected employee. Because they weren't actually tracking it, they had to inspect pretty much everyone on their payroll in those categories of job.
          If Coles and Woolies lost their case, and they did hard, why does a 150 or so person operation think they'd get away with it.

  • AFOS on 04/08/2023 - 18:33
    +1

    Basically, the rule of the thumb is that if you are paid over the award this may be considered compensation for overtime etc. If you are on the award rate then you are entitled to OT rates. In practice, it may be quite different. As some people said, your best bet would be time in lieu.

    Keep in mind though that you won't be able to lodge an unfair dismissal claim within first 6 months of employment. So, I would not rock the boat at this point.

    On the other hand, if you are really willing to fight you can fall back on claiming discrimination for exercising a workplace right.

  • holdenmg on 04/08/2023 - 18:36
    +2

    Hi,

    Record My Hours app
    Our Record My Hours app makes it quick and easy for employees to record and store the hours they work, plus other information about their employment.

    https://www.fairwork.gov.au/tools-and-resources/record-my-ho…

  • xseta on 04/08/2023 - 19:58
    +1

    Thanks everyone for the messages, and the DMs!
    I'll reach out and ask about TOIL, I also had some questions about performance and bonuses so I'll soft play it and see where we go!

    The company itself has a really nice vibe and culture feel so far so hopefully it's just this is a generic AF contract.
    Goodbye wages! <3

  • afah0447 on 05/08/2023 - 08:22
    +1

    'You are not entitled to any additional payment for overtime or any other work performed in addition to your ordinary hours'.

    This places seems like it is run by a pack of arseholes. If they are this bold in treating 'potential' employees like dirt you can be sure they treat you like crap once employed.

    There are plenty of jobs out there run by great people. Find somewhere else as this place is a recipe for disaster.

    • JimmyF on 05/08/2023 - 10:25
      +1

      This places seems like it is run by a pack of arseholes. If they are this bold in treating 'potential' employees like dirt you can be sure they treat you like crap once employed.

      Tell me you don't know what a Salary job vs a wages job is without telling me.

      • hudrob on 05/08/2023 - 16:39

        Why, you just told us all exactly that. A salary is not a replacement for fair work conditions, if you think it is, then you're being exploited.

        • JimmyF on 05/08/2023 - 17:48

          A salary is not a replacement for fair work conditions

          I never said it was. The OP issue was if paid at the award rate then you get xyz, but 'fair work' says if paid above the award you don't.

          Welcome to the world of salary jobs. You are paid above the award rate and you miss out on all the low end wage job perks. OP clearly was a wage earner on the min wage. Hence Salary jobs are such a new concept to them and clearly a lot of people here.

          if you think it is, then you're being exploited

          My salary job pays me well, I'm fine and happy with the terms. I wouldn't want the award rate as that would be a massive pay cut.

          • smalltime0 on 06/08/2023 - 21:18
            +1

            @JimmyF: Did you work for the Howard government when drafting their labour laws, because they changed a while ago.
            If you're paid under award rate, you're being paid under the award rate.
            Difference with salary is OT can be substituted with TOIL without penalties paid, so you would end up being paid less than a non-salaried person per hour worked.
            However overall salaried workers end up being paid better overall.
            The test is "no worse off", the award rate is the least you can be paid.

            Here the OP's job ad example has OT specified as an expected thing - which is fine thats what salaried positions have- but not having paid OT, they're saying its built into the salary.
            The salary is below the $102k pa that is set as the benchmark for no OT paid salaried IT role in the award. ERGO, it is below the award rate, and on-call hours (solo IT that means pretty much 24/7) and actual call out OT hours should therefore be paid in addition to OP's salary.

            • JimmyF on 06/08/2023 - 21:55

              @smalltime0:

              The salary is below the $102k pa that is set as the benchmark for no OT paid salaried IT role in the award. ERGO, it is below the award rate, and on-call hours (solo IT that means pretty much 24/7) and actual call out OT hours should therefore be paid in addition to OP's salary.

              See my comments above to someone else, Salary covers reasonable OT to do your day to day job. Gotta stay back one night 30 mins to finish a job, so be it.

              Scheduled work/OT is never part of salary, always TOIL. Got to patch some servers out of hours and it will take 3 hours, yeah that isn't part of your normal hours and will be TOIL.

              Oncall can be 50/50 depending on the employment contract and how much they are paying. Generally standby might be factored in, but call outs are TOIL.

              Yes I work in IT, yes I'm salary, yes that is how it works for just about all the jobs I've had at various companies and for everyone else in IT.

              Claims of 24/7 working as you are salary just don't happen and are generally made by people who have never been in a salary type of job.

              • xseta on 07/08/2023 - 08:09

                @JimmyF: Meeting with my HR business partner to talk about any questions today, she's super upfront so should hopefully get some of my answers!

  • 2esc on 05/08/2023 - 08:43

    It needs to be clarified with them in writing how much overtime may occur.

    Because they willl push it that so called overtime will become a permanent fixture.

    A independent supermarket chain that bought the supermarket i worked for a couple decades ago they ended up paying me well above the award for 40 hours a week but was permanently rostered for 45.

    I ended up leaving 6 months later as job satisfaction eroded due to different management.

  • jrvb42 on 05/08/2023 - 13:08

    Every salaried job I have ever had listed the hours of work. Even if required to work extra hours, they should always be paid extra and overtime rates. The only exception to this is receiving TOIL. Never do anything extra for your employer. You will rarely if ever be shown loyalty in return.

  • pencilhead on 05/08/2023 - 13:15

    Reasonable hours aren't determined by the company. We have reasonable hours clause in our contracts. If they're not going to pay me OT, I refuse. I always have something else on. If they want me to work nights / weekends etc. Then they need to pay me.

  • Brainwhacker on 05/08/2023 - 13:21

    OP - couple of things to consider - as highlighted you are not entitled to any overtime or TOIL based on the contract clause. Most companies won’t take advantage however it would be prudent to clarify what reasonable means ; also what the culture is like ; a good manager will allow toil for excessive hours

    Also benchmark your salary and then consider the above - especially if you are changing jobs.

    Hope this helps and all the best ,

    • xseta on 05/08/2023 - 15:36

      Thanks, BW; it is probably below the market rate for the work that will be required.

      The issue lies with the company not having many direct service staff; the p/hr is fair; as I mentioned, it is just above level 2 of the award.

      The MSP they are getting paid to do out-of-hours work consistently; the contract could, I guess, be renegotiated based on an extreme amount of, say, weekend or late-night work.

      Edit: I believe their service contract is $15k a month with this MSP.

  • tonka on 06/08/2023 - 00:52

    You are entitled to the payments in your award.
    Your contracted compensation must be enough to cover how much that would add up to.

    If you're working more additional hours than would be covered than you should get payment for the difference.

  • InfiniteRegression on 07/08/2023 - 11:35
    +1

    Hi xseta,
    If you feel that your annualised salary won't cover your award rate*hours + allowances, I would suggest you keep a log of all your worked hours (time stamped) and at a period that suits you ask the appropriate team - (HR/Payroll) to reconcile based on your worked log. Ensure that any overtime you do is business directed.

    Regarding "Your remuneration for any pay period can be set off against and expressly applied in compensation of all award and any other legal entitlements for work performed during that period." this is normal offset practice, the keywords here is "work performed during that period" so if you are paid only a monthly basis they cant use deficit of the offset from January to offset the extra overtime you did in February as that is seen as a technical breach.

    "Given the nature of your role, you acknowledge that from time to time you may be required to work
    reasonable additional hours, in order to perform your responsibilities and duties, including work on
    evenings, weekends and public holidays."
    this statement isnt saying that the work you are doing unpaid but saying as long as its reasonable you may be required to work outside of ordinary business hours.

    My advice to you is ensure you understand your Classification e.g. "Level 2 Experienced professional/quality auditor/experienced medical research employee" or similar that would fall under in the Professional Award and then keep track of your hours reconciling it based off of your pay period until you are either satisfied with the buffer or if you are not then keep a log and present to HR/Payroll at your period that is suitable to you.

  • Brainwhacker on 14/08/2023 - 18:53

    OP - couple of things to consider - as highlighted you are not entitled to any overtime or TOIL based on the contract clause. Most companies won’t take advantage however it would be prudent to clarify what reasonable means ; also what the culture is like ; a good manager will allow toil for excessive hours

    Also benchmark your salary and then consider the above - especially if you are changing jobs.

    Hope this helps and all the best ,

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