I appreciate some guidance on industrial relations please. My position is covered by a Modern Award, however, I have signed an individual employment agreement. (The pay rate and leave entitlements are much better in the individual employment agreement).
The question is if Modern Award still applies if an individual employment contract is in place? If yes, which section of Modern Award applies, and which section doesn't apply?
Thank you all.
I also ANAL, but if your contract is silent on an item, the award will prevail.
We don't need to know about your private life…
Thank you bro. The Award was silent on employment contract.
IIRC, the Modern Award clauses are a "minimum" so the clauses in your Individual Agreement has to be better (otherwise the relevant clauses/components that are not will default back to those in the Modern Award).
This was my thinking, I’m not in IR/ER but was aware of work done to ensure different contract types were “better off” based on either contract vs award
It’s a complicated world, any large org that hasn’t already admitted to or identified historical payroll and contract issues is probably kidding themselves, with so many awards, individual contracts and changes etc. not an excuse for underpayment etc but can easily see how it happens. Just last year a company I hadn’t worked for for 9 years paid me $300, unfortunately my tax rate has changed since then 😂
.. not an excuse for underpayment etc but can easily see how it happens
During Covid, I ran a project to identify and payout anyone amongst the tens of thousands of employees who may have been underpaid. It was complicated as fk.. and we needed a panel of HR lawyers and used external HR specialists to interpret the rules and regulations to ensure compliance. There's almost no chance a regular person would be able to correctly interpret the way these rules have been written. Tens of millions were paid out to current and former employees as a result of the 'voluntary' exercise.
Are there elements in your individual contract that would leave you “worse off” compared to the award?
Thank you. In general the individual contract conditions are better. However, the individual contract is silent on Annual Leave cash out. If referring back to Award, maximum 2 weeks Annual Leave cash out is allowed. The company policy has no restriction on Annual Leave cash out as long as 4 weeks remain on the book after cash out.
They're probably meant to restrict you to only taking 2 weeks, but it's an unclear one. The big problem with cashed out leave used to be that companies would force employees to cash it out, and there's recognition that for health purposes it's a really good idea to take a break. I'm not sure if that's a restriction on the employee rights (in which case, the company can offer what they want) or the employer.
You'd have to call fairwork to confirm, or just stay quiet if you want to cash more out because, with a lot of employment laws, fairwork ignores it until someone raises a complaint with them.
Have you reviewed the advice from the Fair Work Ombudsman? https://www.fairwork.gov.au/employment-conditions/contracts
Thank you.
Ask your union, that's what they're there for
We all don't have union.
That's the first thing to fix then!
With union fees so steep these days I always advocate for DIY… until things get messy
@jugsy: Still not worth it for pretty much everyone, unless someone in your family works in the union movement.
Is there an union for IT programmers and Engineers?
@gstfree: Professionals Australia for IT and Professionals Engineers Australia for Engineers.
I'm in neither as I have an awesome boss with excellent entitlements. If I worked in a more corporate environment I'd probably need to.
@Clear: Does a union help people working for small businesses, on non-award salary? How might that play out - do they call your employer and argue on your behalf that you're overdue pay rises?
An individual contract or EBA must be better than an award but if the contract does not state what the award state, the award will cover that by default.
For example:
If your contract state, in basic terms, $25 per hour, full time but the award is $24 per hour, full time then this is legal and the contract trumps the award.
BUT
If your contract states nothing about breaks for whatever reason, then your award will be default in the breaks clause.
It can go the other way round too. If your individual contract state $23 per hour, full time. The contract can not be worse than the award, the business must meet the minimum requirements of the award. Thus you can confidently and safely raise a case the award state $24. An individual contract CANNOT override or trump an award.
Thank you very much. For education myself purpose only, if the Award has a clause of Overtime at night and weekend, but Employment Contract said "you are on a fixed annual salary included all overtime you worked, if you claim overtime any payment above the Award offsets the overtime claim". Does this make sense or has any room to argue?
Salary and wages are two separate monetary compensation.
Salary will have it's own set of OT clauses while wages usually have, IMO, better clarity on OT payment clauses.
Per annum salary figures are usually higher than the total full time wage figure.
For example:
Your salary may be $60,000 but the wage equivalent may total to $45,000. So you're better off on a salary.
BUT…. here's the kicker, salary employees usually have vague and general blanket clauses like the one you wrote "you are on a fixed annual salary included all overtime you worked, if you claim overtime any payment above the Award offsets the overtime claim".
What your contract means, "you're on salary, not wage, therefore any OT you do is covered in your salary and there are no other compensation if you do OT unless we say so".
Some businesses give their salaried workers 'time off in lieu' for OT, some may compensate it with additional annual leave etc… but with your clause it state: "you are on a fixed annual salary included all overtime you worked". This means in laymen terms: "sorry buddy, no extra monetary payment if you work OT cause it's included in your salary"
You can work OT for 1 hour per week or 20 hours per week, it's still included in your salary. If you're on wage, that's another story but we won't cover that cause it's not applicable to you and the wage clauses in the award is not applicable to you.
This can go the other way round, if your employer is flexible, you can show up to work or go home early.
Thank you very much. Your explanation by far is the most clear one. I am in an very busy environment and WFH OT is an EVERYDAY thing. We don't get time in lieu.
@gstfree: Most companies/businesses know if a role has excessive OT and they will put employees on salary as it benefits them not really you unless they give additional OT benefits.
It may have benefitted you if you were on wage as you can claim every hour as OT as monetary pay thus in the year, your wage OT may have been more than a salaried worker.
Salary can be good or bad depending on the role and the benefits a salary worker has with OT.
In your case, cause you work OT, based on your clause, you don't get any additional OT benefits. This is quite a scum move by the employers, I assume they knew the role requires alot of OT thus putting employees on salary without extra OT benefits.
Welcome to capitalism
@gstfree: Keep a record of your hours just in case and potentially as a bargaining chip later on if you request a higher salary. For example if you realise you're doing more hours than you expected for the salary you agreed to.
Otherwise, if you work say 45 hours a week, calculate the award wage plus the extra 7 hours at the relevant overtime rate and compare that to your salary. You need to be better off overall. If your salary isn't well above the award wage, there will be a point in which the higher salary is not enough compensation for the extra hours.
you only have room to argue if the award has a higher salary than the employment contract.
I.e. go and calculate out what you would have been paid under the award (including overtime) and, if it's higher than what your employment contract says, they should pay you the difference. Most people don't bother keeping track of their time well enough to prove this though.
Thank you very much.
be very cautious about 'reasonable overtime' clauses
In OPs case, they don't have OT compensation.
Your IEA should state this.
Typically the two work in conjunction and your individual changes will override certain clauses of the award.
IANAL