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Workplace Rights and Entitlements

Mar 01 2018
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know how much you should be paid

Are you a Trainee or Apprentice? Do you Know What you Should be Paid?

By | Workplace Rights and Entitlements

Knowing How Much You Should Be Paid

If you are a trainee or apprentice you ought to check that your employer is paying you the correct rate of pay.  If a modern award applies to you, then this workplace instrument covers your employment and sets out the minimum wages that apply to you (unless an enterprise agreement applies to you).

In some states, employers have been paying wages according to a state instrument.  For example, in Queensland, many employers would pay their apprentices with respect to the Order of Apprentices’ and Trainees’ Wages and Conditions (Excluding Certain Queensland Government Entities) 2003.  Queensland Awards and Orders that were Notional Agreement Preserving State Awards (NAPSA), such as the above Order, allowed for State Awards created prior to 27 March 2006, to continue to operate post the introduction of the modern awards system by the Federal Government in 2009.

In 2017, this view changed when the Fair Work Commission found that these instruments are no longer in force and have not continued to operate post 1 January 2014.

In light of this, your employer may not be paying you correctly.  If you think this may apply to you, check your applicable modern award at www.fwc.gov.au to confirm the correct rate of pay.

If you are not being paid correctly and are receiving a lesser amount then you are entitled to you may have an unpaid wages claim.  Did you know that you have six years in which to make an unpaid wage claim?  This means that you can make a claim for unpaid wages that goes back up to six years.

If you need any assistance, do not hesitate to contact Anderson Gray lawyers here in Melbourne, Sydney, and Brisbane – we are here to help.

Mar 01 2018
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taking annual leave

Do you Know your Annual Leave Rights?

By | Workplace Rights and Entitlements

Understanding your Rights to Annual Leave

Most modern awards now contain additional annual leave provisions that include the ability to:

  • cash out annual leave;
  • take annual leave in advance;
  • manage excessive annual leave balances; and
  • make payment for annual leave during the period of leave.

You are most likely aware that the Fair Work Commission varied a number of modern awards, but do you know all the changes and how they may apply to you?

Cashing out annual leave

You and your employer can make an agreement in writing to cash out your annual leave.  Each time an employee wishes to cash out their leave, a new agreement must be made between you and your employer.  The agreement must state the amount of leave to be cashed out and the amount of the payment to be made to you, including the date the payment is made.

It is important to note that the payment made to you must not be less than the payment you would have received if you had actually taken the period of leave.

However, there are some rules in relation to how much leave you are able to cash out.  The agreement to cash out annual leave must not leave you with an accrued annual leave entitlement of less than four weeks, and you are not permitted to cash out more than two weeks of leave in a 12 month period.

Taking annual leave in advance

You can take a period of paid annual leave before you have accrued an entitlement to take the leave if:

  • your award says you are able to; and
  • your employer agrees in writing to the advance payment.

The agreement between you and your employer must state the amount of the leave to be taken in advance and the date on which the leave is to start.

So you are aware, if your employment ends prior to you accruing the amount of the entitlement that you have taken in advance, your employer has the right to deduct any money owing from your final pay.

Managing excessive annual leave balances

If you have accrued an ‘excessive’ leave balance of at least eight weeks, you and your employer can reach an agreement to reduce your excessive leave balance.

If you and your employer cannot reach an agreement, then you can make a request in writing that you take a period of paid annual leave. However, you must have had your excessive leave balance for at least six months and your employer must not have issued a direction that would result in your excessive leave accrual being eliminated.  Any request must not result in your accrued annual leave balance being less than six weeks.

Your employer can also direct you to take annual leave in writing.

Anderson Gray lawyers are lawyers for employees in Sydney, Australia.  We are here to help you. Contact us today if you have any questions about your workplace entitlements.

Dec 01 2017
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Am I being paid enough? What is my right rate of pay?

By | Workplace Rights and Entitlements

Am I getting the right amount of pay?

You would think this is a simple question, but it’s not.  There is no doubt that today’s workplace laws are complicated.  So it is no wonder that employees have difficulty in trying to work out what their rate of pay should be in return for a days hard work.

To work out the minimum rate of you are entitled first requires you to work out whether or not you are covered by an award.  An essential feature of an award is to prescribe the rate of pay for all employees covered by that particular award.

While trying to work out what particular award applies to you is difficult, we have set out below a simple process that is designed to give you some guidance.  So:

  • Step 1, review the award title to see if it might apply. For example, employees in the construction industry, might start by looking at the Building and Construction Onsite Award 2010, because, as the name suggests, it applies to that industry.
  • Step 2, go to clause 4 of the Award (it’s the same clause for all Modern Awards) and look to see whether the award covers the industry in which your employer operates. If it does, then that award is likely to apply to you.  If the award does not cover the industry in which your employer operates, then you’ll need to look at other awards to see if they might apply.
  • Step 3, turn to the classification definitions (usually found at Appendix B), and read through the classifications to identify the classification that best fits the actual duties you do on a day-to-day basis.
  • Step 4, check the rate of pay that relates to your classification of work in the body of the Award.

You must remember that the award sets out your minimum rate of pay.  So if you are not being paid the amount that relates to your classification of work under the award, then you might be being underpaid.

If you have a contract of employment that also sets out a rate of pay, then the rate of pay stipulated in the contract must be equal to or more than the rate you are required to be paid as set by the award.  If the contract states that your pay is less than the award rate, then again, you might not be being paid the right amount.

If the contract amount is more than the award rate, then for your ordinary hours of work, you’re probably going to be being paid the correct amount.  However, if you work more than 38 hours per week (on a full time basis), or more than the agreed hours (if you are a part-time employee), then the rate of pay needs to adjust to take account of your entitlement to overtime and/or penalty rates.

If you have any questions contact one our experienced employment lawyers.

Photo by James Sutton on Unsplash
Nov 02 2016
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Don’t Suffer in Silence! You CAN Ask Questions about your Entitlements

By | Unfair Dismissal, Workplace Rights and Entitlements

Enquiring of your Entitlements

The Fair Work Act provides that an employee is entitled to make a complaint or enquiry about their employment. It also provides that an employee should not be treated adversely because they made a complaint or enquiry about their employment.

A recent decision handed down by the Federal Circuit Court has identified that the court is willing to impose hefty penalties on employers (and individual directors) for treating an employee adversely after the employee made a complaint about his wages. In the case of Fair Work Ombudsman -v- Windaroo Medical Surgery Pty Ltd & Ors [2016] FCCA2505 (28 September 2016), Judge Jarrett penalised the Surgery and two of its directors because:

1. they threatened to stop paying a Doctor who had complained to the FWO about not being paid;

2. they did stop paying him until the Doctor resigned a few months later.

The Surgery and its Directors were collectively penalised over $50,000 for their involvement in the poor treatment of their employed Doctor.

The message here is that, as an employee, you have the right to complain to your employer about your workplace entitlements. If you suffer a loss because of that complaint, then the employer will be taken to have breached certain provisions of the Fair Work Act and you are likely to be entitled to compensation.

If you think that this has happened to you, then please give us a call.

AGL Team

Lawyers for Employees – specialising in unfair dismissal claims

 

Oct 07 2016
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Bullying young people in the workplace all too common

By | Workplace Rights and Entitlements

October is safe work month.

I thought it was an opportune time to blog about young people at work. Young adults – aged between 15 and 25 years old – make up a significant proportion of today’s, modern work force. Quite alarmingly, a recent report (referenced in today’s Sydney Morning Herald) has suggested that 50 per cent of young adult workers had experienced bullying and harassment at work.

A number of young adults surveyed indicated that bullying and harassment (including sexual harassment) was so common place, that many instances were treated by employers as a ‘non-issue’.

Whilst the legislators have progressed the law to the point of making bullying and harassment unlawful, it seems that not enough is being done to re-enforce the message to employers that ‘bullying and harassment is unlawful’. It is also un-safe and has the potential to seriously affect a young adults’ capacity to remain engaged in meaningful employment.

Importantly for young adults at work, you have the right to complain to your manager or your local workplace health and safety officer about legitimate unsafe work practices, including instances of bullying and harassment. The aim of any such complaint should be to try to resolve your concerns in a meaningful and respectful way.

And if that doesn’t work, we’re always here to help you in any way we can.

The AGL Team

Lawyers for employees – specialising in unfair dismissal

Photo via Visualhunt.com

May 17 2016
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unfair dismissal reasons

The Right Pay Dilemma

By | Unfair Dismissal, Unpaid Wages, Workplace Rights and Entitlements

Getting Paid the Right Amount

Being paid the right amount for hard work is an employee’s absolute right.  Incorrect or unpaid wages can seriously impact the working relationship between employee and employer.

The complex and often overlapping maze of awards, enterprise agreements and employment contracts often over complicates a basic and fundamental employee entitlement.  This maze of contractual terms often has the effect of confusing entitlements relating to overtime, penalty rates, time off in lieu and other employee entitlements.

Unfortunately, and perhaps because the system is complex, employers happen to apply the wrong minimum rate of pay for work performed.  Sometimes the employee is at fault, sometimes the adviser also gets it wrong.  Either way, ignorance is no excuse.

A recent case in the Federal Circuit Court has shown that even ‘expert’ advisers can get it wrong.  In this case, Ezy Accounting 123 Pty Ltd was pursued by the Fair Work Ombudsman for providing the employer with the wrong advice.

Whilst this is a potentially ground-breaking case in terms of extending the persons responsible for getting it wrong, it doesn’t change the fact that an employee should be paid the right rate for putting in a hard day’s work.  Unpaid wages are a genuine problem in businesses across Australia.

The good news is that the process for trying to recover your unpaid wages is fairly straightforward.  Often it will involve making a demand and then (if the matter is not resolved) seeking help from either the Fair Work Ombudsman or the relevant Court or Commission.

At Anderson Gray, we’d love help out anyone who’s been paid the wrong amount – because employees deserve the right pay for hard work done. Get in touch with our Melbourne unfair dismissal lawyers.

Apr 08 2016
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Bullying – have you been affected?

By | Bullying & Harassment, Workplace Rights and Entitlements

Somewhat disappointingly, a study has found that more than one in five persons are bullied at work.  Further, one in three people are affected by workplace bullying.

What is bullying?

Well, at law, a person is ‘bullied at work’ if an individual (or group of people) repeatedly behaves unreasonably towards a person (or a group of persons which the worker is a member) and that behaviour creates a risk to the person’s health and safety.

Quite often, managers and supervisors try to ‘lead’ a group of individuals.  However, because they don’t have the proper skills, they are often unsuccessful at ‘leading’ and instead act in a manner that may be described as ‘bullying’.  This isn’t necessarily the manager or supervisors fault, it’s just that they don’t know how to properly manage their co-workers.  It is easy to say fault then rests with the employer (and may be that is right), but often it’s the lack of attention to managerial and supervisory training and education by all people involved that is the real problem.

I am regularly contacted by people who have been bullied and/or harassed at work.

The impact (that I see) is that bullying has a real and often debilitating impact on an individual.

Further, it creates an unhappy and unproductive workplace, and this is where I don’t get the lack of investment by employers in developing and nurturing good managerial and supervisory practices. It ultimately impacts on profit.

Raising awareness of bullying and harassment is important and hence the reason for this blog.  And perhaps our education should start a little earlier than the workplace.

I recently read an article whereby a 12-year old boy in America committed suicide in response to alleged bullying at school.  He did it to “stop the pain”.

Closer to home, a recent ABC poll uncovered that 86% of school children have experienced bullying at school.

We are doing our best to try and prevent bullying occurring at the workplace.

If you believe you have been bullied at work, then  please contact us.  We might be able to help you out.

 

Mar 18 2016
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who is protected from unfair dismissal

We’re employees…not children!

By | Workplace Rights and Entitlements

I have heard it said by professional advisors that ‘managing employees’ is akin to ‘supervising children’.

As a general employer attitude, this is obviously wrong on many fronts. Wrong, because it undermines the belief that for most of the time on most days, employees across Australia are doing the right thing.

Nearly all employees require little management, they are autonomous and they are hard working.

If the advisor’s attitude is to manage employees like ‘children’, then it is little wonder that some employer’s (who rely on that advice) approach management decisions from completely the wrong angle.

Recently, the Fair Work Ombudsman commenced a Federal Circuit Court claim against an employer’s third party advisor. It alleges that the third party advisor was complicit in the employer’s breach of the Fair Work Act.

Perhaps this type of claim by the FWO may seek to remedy the actions of employer’s who (on advice) act to belittle their employees.

We’re doing our best to change the attitude …

Mar 16 2016
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The silver lining….

By | Workplace Rights and Entitlements

Whatever happens, it’s the consequences of the dismissal from work that causes me the most concern. In my experience, rarely is any thought given (by either side of the equation) to the personal circumstances of the dismissed person. Only after it happens, and the reality of a situation sinks in, does the individual start to come to grips with the mountain of problems they will face.

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Mar 07 2016
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Helping Employees….it’s what we’re about!

By | Unfair Dismissal, Workplace Rights and Entitlements

Getting Help for Unfair Dismissal

Being told you don’t have a job, regardless of your status in the world, is always a difficult moment.  I know this, because in a legal career expanding some 16 years, I’ve seen the hurt and damage associated with the dismissal of many persons.

The initial reaction is largely the same – bitter disappointment and anger.  Sometimes, the employee is at fault and shouldn’t have done what they did.  Similarly, there are unscrupulous employers who simply do the wrong thing.

The law is designed to protect the individual from the unscrupulous employer.

Helping an employee out in times of trouble is our business.

And here’s where we want to helpout.

Helping an employee out in times of trouble is our business.  Whether that is by way of making a demand on your employer, commencing proceedings or simply pointing you in the right direction – for us, it’s all about helping out.

You should expect from every advisor that they go about their business in a cost-effective, efficient and diligent manner. At Anderson Gray Lawyers, it’s what we strive to do every day.

And, we know our business doesn’t stop with you.  We want to be the law firm that you are happy to refer to your network of friends, if ever any of them find themselves in trouble at work. You can contact our Sydney branch, or search for us in a city near you.