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  • #999994
    eightknots
    Member
    • Total posts: 16

    Hi all , i have a quick question is anyone can answer this , if a worker is paid weekly on set 38 hours , but is expected to be there for 42.5 hours per week do they have to be paid for the 42.5 ? , below what contract says , im not to up on legal jargon but does this cover them for making you work the extra without pay. the contract is incorrect in that our hours are 7.30 to 4.30pm , any advice is welcome

    1. Hours of work

    The hours of work for a full-time employee are 38 hours per week plus reasonable additional hours.

    You are expected to work your hours of work between 9.00am to 5.00pm Monday to Thursday and on Fridays 9.00am to 5.30pm and at such other times as may be required in order to complete your work and discharge your duties and responsibilities. The Company may vary your normal starting and finish time to suit business requirements. Your remuneration takes into account all hours worked by you including reasonable additional hours.

    If at commencement of this contract you are working different hours these will be set out in Item 9 of Schedule 1.

    1. Remuneration

    A salary listed in Item 6 of Schedule 1 will be paid to you weekly directly into an account nominated by you in writing.

    Your salary as specified above includes all payments and benefits that we are legally obliged to provide to you. Your effective hourly rate of pay for hours worked is specifically off-set against, applied to and absorbs any existing or newly‑introduced payments or benefits to which you are or may become legally entitled, including but not limited to:

    (a) all hours worked by you including all hours worked in excess of your ordinary hours;
    (b) your entitlement to overtime rates and penalty rates;
    (c) your entitlement to allowances;
    (d) your entitlement to annual leave loading; and
    (e) your entitlement to any payment, benefit, or other form of salary loading.
    under any applicableaward, agreement or legislation.

    We also may from time to time, at our sole discretion, provide increases or bonuses based on overall business and personal performance. Bonuses will be set out in Item 7 of Schedule 1.

    Your pay as specified above includes all payments and benefits that we are legally obliged to provide to you. Your effective hourly rate of pay for hours worked is specifically off-set against, applied to and absorbs any existing or newly-introduced payments or benefits to which you are or may become legally entitled, annual leave loading, pay period specifications, overtime and/or penalty rates under any legislation, or award) unless we specify otherwise.

    Your remuneration and benefits or any part of them will be reduced so that your total aggregate annual remuneration shall be no more following the statutory or award introduction of any further payment or entitlement than beforehand.

    #1222234
    Paul – FS Concierge
    Keymaster
    • Total posts: 3,189

    Fairwork or a lawyer are about the only sources I would trust with an answer to this one.

    #1222235
    Rowan@quaotic
    Participant
    • Total posts: 712

    Not a contract I would ever consider signing. As above, you should talk to Fairwork or a lawyer before signing.

    #1222236
    bb1
    Participant
    • Total posts: 4,485

    Sounds like another employer trying to rip of staff with a badly written contract. Take them to fair work, it’s these employers that give business a bad name.

    #1222237
    James Millar
    Participant
    • Total posts: 1,704

    I’ll bet if you only turn up for 34 hours a week the employer won’t view it as reasonable in the same light. Sees like no give and all take.

    Helping build better businesses and better lives with expert financial and taxation advice. info@360partners.com.au www.360partners.com.au 03 9005 4900
    #1222238
    Bubbles101
    Member
    • Total posts: 3

    The answer to your question [USER=116784]@eightknots[/USER] is yes as long as:

    ‘The salary isn’t less than the minimum entitlements an employee is entitled to under the award or registered agreement that applies and the National Employment Standards

    So if the annual salary is more at least equal to what you would be paid if you were paid hourly plus overtime based on your 42.5 hrs a week plus entitlements such as leave loading etc then the agreement is legal.

    Link here for further clarification
    https://www.fairwork.gov.au/pay/minimum-wages/salary-payments

    The last paragraph (below) though is confusing and doesn’t make any sense.
    Not sure if this is a cut and paste jumble, but if it’s the actual working I’d suggest that it would have to be corrected before signing.

    ((Your remuneration and benefits or any part of them will be reduced so that your total aggregate annual remuneration shall be no more following the statutory or award introduction of any further payment or entitlement than beforehand.))

    #1222239
    bb1
    Participant
    • Total posts: 4,485
    Bubbles101, post: 268489, member: 117018 wrote:
    The answer to your question [USER=116784]@eightknots[/USER] is yes as long as:

    ‘The salary isn’t less than the minimum entitlements an employee is entitled to under the award or registered agreement that applies and the National Employment Standards

    So if the annual salary is more at least equal to what you would be paid if you were paid hourly plus overtime based on your 42.5 hrs a week plus entitlements such as leave loading etc then the agreement is legal.

    Ah but that doesnt cover of this clause, basically it is saying that you base salary covers any other legislated requirements, so even if they are paying award, subtract hliday pay, overtime, etc, etc. Oh and the catch all, if there is any new legislated payment, that also comes out of the existing pay. Wow they want their cake and eat it as well. Fair work would have a party on this one

    ”Your salary as specified above includes all payments and benefits that we are legally obliged to provide to you. Your effective hourly rate of pay for hours worked is specifically off-set against, applied to and absorbs any existing or newly‑introduced payments or benefits to which you are or may become legally entitled, including but not limited to:

    (a) all hours worked by you including all hours worked in excess of your ordinary hours;
    (b) your entitlement to overtime rates and penalty rates;
    (c) your entitlement to allowances;
    (d) your entitlement to annual leave loading; and
    (e) your entitlement to any payment, benefit, or other form of salary loading.
    under any applicableaward, agreement or legislation. ”

    #1222240
    Bubbles101
    Member
    • Total posts: 3

    It’s entirely dependent on the rate of the salary.

    bb1, post: 268490, member: 53375 wrote:
    Ah but that doesnt cover of this clause, basically it is saying that you base salary covers any other legislated requirements, so even if they are paying award, subtract hliday pay, overtime, etc, etc. Oh and the catch all, if there is any new legislated payment, that also comes out of the existing pay. Wow they want their cake and eat it as well. Fair work would have a party on this one

    ”Your salary as specified above includes all payments and benefits that we are legally obliged to provide to you. Your effective hourly rate of pay for hours worked is specifically off-set against, applied to and absorbs any existing or newly‑introduced payments or benefits to which you are or may become legally entitled, including but not limited to:

    (a) all hours worked by you including all hours worked in excess of your ordinary hours;
    (b) your entitlement to overtime rates and penalty rates;
    (c) your entitlement to allowances;
    (d) your entitlement to annual leave loading; and
    (e) your entitlement to any payment, benefit, or other form of salary loading.
    under any applicableaward, agreement or legislation. ”

    The initial question was whether it’s legal to have an agreement where an employee can be asked to work a specified amount of overtime without being paid penalty rates.

    I believe you have mis read the agreement.
    It’snot ‘minus holidays etc’ but including.

    Fair Work wouldn’t have a problem with it as long as the total amount of their salary covered their rights and entitlements to all amounts specified under the award or agreement.

    And salaries are usually inflated to make sure these things are well covered.

    The initial question didn’t give any information regarding either the salary amount or the applicable award. They will be able to use the tool in the fair work link provided to calculate what the minimum rates and allowances should be.

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