wycbloods wrote:devilsadvocate wrote: Fast forward to the Fair Work Act and an employee contracted part time for 22.5 hours per week, cannot work even 1 additional hour for the week without attracting loading. At present it's 50% for the first 2 hours of any additional shift (regardless of the day it is worked) and 100% loading for any hours after those first 2.
What a load of total and utter bullshit. Read the act properly if that is a genuine concern of you wifes then all awards and agreements MUST have a flexibility clause and the model clause that applies to all awards and all agreements unless they negotiate a different one allow for individual employees to negotiate with their employer about such things as hours of work, penalty rates and shift loadings amongst other things.
Excuse me?
Which part of that is total and utter bullshit?
Yes, all awards must have a flexibility clause, but this is almost invariable to the detriment of the EMPLOYER. Therefore as a result, the employer will modify their behaviour to minimise the impact of the application of the award - in my wife's case, it means she is not allowed to pick up any shift, which will result in her exceeding her 22.5 hours per week.
My wife is covered by MA000027 - Health Professionals and Support Services Award 2010.
This award, like all others has a flexibility clause, as follows:
7. Award flexibility
7.1 Notwithstanding any other provision of this award, an employer and an individual employee may agree to vary the application of certain terms of this award to meet the genuine individual needs of the employer and the individual employee. The terms the employer and the individual employee may agree to vary the application of are those concerning:
(a) arrangements for when work is performed;
(b) overtime rates;
(c) penalty rates;
(d) allowances; and
(e) leave loading.
7.2 The employer and the individual employee must have genuinely made the agreement without coercion or duress.
7.3 The agreement between the employer and the individual employee must:
(a) be confined to a variation in the application of one or more of the terms listed in clause 7.1; and
(b) result in the employee being better off overall than the employee would have been if no individual flexibility agreement had been agreed to.
7.4 The agreement between the employer and the individual employee must also:
(a) be in writing, name the parties to the agreement and be signed by the employer and the individual employee and, if the employee is under 18 years of age, the employee’s parent or guardian;
(b) state each term of this award that the employer and the individual employee have agreed to vary;
(c) detail how the application of each term has been varied by agreement between the employer and the individual employee;
(d) detail how the agreement results in the individual employee being better off overall in relation to the individual employee’s terms and conditions of employment; and
(e) state the date the agreement commences to operate.
7.5 The employer must give the individual employee a copy of the agreement and keep the agreement as a time and wages record.
7.6 Except as provided in clause 7.4(a) the agreement must not require the approval or consent of a person other than the employer and the individual employee.
7.7 An employer seeking to enter into an agreement must provide a written proposal to the employee. Where the employee’s understanding of written English is limited the employer must take measures, including translation into an appropriate language, to ensure the employee understands the proposal.
7.8 The agreement may be terminated:
(a) by the employer or the individual employee giving four weeks’ notice of termination, in writing, to the other party and the agreement ceasing to operate at the end of the notice period; or
(b) at any time, by written agreement between the employer and the individual employee.
7.9 The right to make an agreement pursuant to this clause is in addition to, and is not intended to otherwise affect, any provision for an agreement between an employer and an individual employee contained in any other term of this award.The issue with the above flexibility clause is the part I’ve bolded – the employee must always be better off. So why should an employer enter into a flexibility agreement unless they have no other choice?
Clause 10.3 (d) states that a part time employee’s ordinary hours are pro-rated on the basis of a FTE being 38 hours and all terms of the award will apply on that basis.
Therefore, with my wife’s contract being 22.5 hours, those are her ordinary hours.
Clause 28.1 dictates that an employee who works outside their ordinary hours on any day will be paid time and a half for the first two hours; and double time thereafter.
So in response to this change, her employer has said no employees are to swap shifts without written consent. And this makes sense because if my wife was to pick up a 4 hour Saturday morning shift, the employer would have to pay my wife double time for the final 2 hours of the shift, compared to time and a half to the orginal employee, who would have been working ‘ordinary hours’.
I’ve implemented the Fair Work Act in our manufacturing business, covering 100+ employees across 6 different awards. We have this exact issue with 2 staff who are employed to do a specific job. If they are away, we have to wait for them to return before the job gets done. (Which goes against everything I stand for – each position should have cover from another staff member) When one of these employees has carers leave for example, the cannot simply come in the following day and do their job, as the would be required to be paid time and a half for the first 2 hours and double time thereafter, as those hours would be in excess of their ordinary hours.
So before ripping my head off like you’re all high and mighty next time, perhaps take your time to read through the Act yourself.
.
.
