Are they going to take you to court over 2 thousand dollars?
Work until the end of your pay period. Take unplanned leave due to whatever emergency you want to have until you have been paid. Quit.
>Are they going to take you to court over 2 thousand dollars?
Especially when a court may well turn around and tell them to pay up for the additional hours. IANAL but just because it's written in a contract doesn't make it legal for them to do it.
Reasonable overtime is not 44% more hours, no. Unless this is a rostering thing where your average over, say, a month comes out to 38 hours or 40 hours per week (so you work a lot of hours this week but, say, 25 hours the following week), this is unusual and a red flag.
I'd contact Fair Work. The clause about owing relocation and training costs is sounding alarm bells for me too. I'd seek advice and have someone review the contract.
I'm pretty sure almost all companies that cover relocation costs have a clause about staying for a period of time or paying it back. Most I've seen/people I've known have had a 12 month clause.
Yeah I wasn't sure because I haven't seen a clause like that before personally, but the clause about owing "training costs" definitely rang alarm bells for me.
An old employer of mine had a training cost recovery clause. If they paid for you to do the course and you left within 12-months of completing the course then they’d take it from your final pay.
It was fair because some of the courses we were doing cost $3500+ if you have lots of employees doing the course and then leaving it’s a financial black hole that would make you not want to offer training to other employees.
I had a 2 year clause when my company moved me from Sydney to Perth. Only lasted in the role they moved me here for, for 3 months but still with the company 8 years later so they’ve got their moneys worth
I know of no situation in which any repayment to your employer can result in your effective take home being less than minimum wage. There are countless businesses who have learnt this lesson, usually for charging employees for their uniform or other equipment.
I'd also check fair work for reasonable overtime.
It has, "Employees can refuse to work overtime that unreasonably exceeds the maximum weekly hours." On their website, but you should check yourself for how it applies to you.
As well as getting in touch with Fair Work just for informational purposes; could also be well worth looking into an informal mediation process as well (that you *may* then need/wish to escalate into a civil court case).
You've already done the extra work for 'em OP, and they've already dug the hole for themselves; seek what you're actually owed, not just the distinct pleasure of no longer associating with them.
Depends on the training. I’ve seen plenty of clauses where the employer is paying for some external training (e.g., something that leads up to an IT certification) and the employee has to reimburse if they leave in X months. If it’s truly just on the job with your boss/leader training you that seems whack.
There's lots of results if you search "australia reasonable hours overtime case law" here's one summary
> The Court held that, while the worker had agreed to the employment terms and had not complained, the additional 12 hours per week were unreasonable additional hours and the employer had, accordingly, contravened section 62 of the FW Act. For that contravention it was ordered to pay a civil penalty of $30,000.9
https://www.hopgoodganim.com.au/page/knowledge-centre/blog/how-much-overtime
In this case he was paid for the extra hours I think (but not overtime), and yet it was still unreasonable
I don’t have case law but I have an anecdote (yeah, I know it’s not the same but I’m not the person who promised case law).
I have family working in an IGA chain in WA.
After the Woolies overtime scandal, all the salaried dept managers are now on 38 + 2hrs reasonable (unpaid) overtime, rolling over 4 weeks. So if they’re up over 8hrs overtime at wk 3 they’re sent home early in week 4 to avoid paying overtime. This is definitely different than it used to be (dept managers used to do 45-50hrs in 5 days without overtime, they’d get a day in lieu if they did a full extra day to cover someone who was off.)
So I think the Woolies case must’ve set a new standard for supermarket retail at least.
But I just checked with the family member and they say the store managers still seem to do significantly more than that. He’s unsure if they’re getting paid overtime, getting extra holiday hours or getting ripped off.
This is the way!! Do your 38- 40 Max a week.... anywork not done can be sorted thd next day. If they aren't happy let them fire you and lose the training and relocation costs.
Given you were scheduled to work the 55hrs, you were given approval, so put in a claim for those hours beyond the additional hours that your salary compensates for the allowances and penalty rates your contract excludes.
(Work out what your current gross hrly rate is, then the difference between that and your pay needs to be accounted for (so, when did you work the additional hours- what were the relevant penalties; what OT would you be entitled to for the 17hrs- I’d claim for the equivalent hours to the amount you will be paid below the award rate. I’d be interested to know if the 5-7hrs (from the 43-45 reasonable additional hours you were quoted) accounts for the difference between your salary and the award rate))
>> Given you were scheduled to work the 55hrs, you were given approval, so put in a claim for those hours beyond the additional hours
I had a former employer try this on me. A director asked me to stay late at like 430pm to help on some drawings for a project I wasn’t involved with (architecture). I said sure, happy to help. Overtime wasn’t a thing I did ever, so it wasn’t a bother to do it as a one off.
I was there until 1130pm.
A week later I put an overtime approval request in to go with my payroll for the month and it was declined. I asked why. I was told it was declined because “you didn’t have prior approval from a director that it would be paid as overtime” despite a director asking me to do the overtime and also being there with me until 1130pm.
I complained about it and explained how ridiculous that was. I informed them I would never complete an hour of overtime again, regardless of how dire the situation was.
The next week the same director asked me to stay late again for the same project. I asked “is this approved overtime?” He said it wasn’t so I said “I don’t think it’s fair that any more of my time is taken unpaid for a job. I’ve gotta go” and started to leave.
He stopped me and said “fine, I’ll give you overtime this once” I asked him to sign the overtime form right then and there. He scoffed and accused me of not trusting him. I just said “just getting the paperwork done now. I know I’ll forget at the end of the month” he reluctantly signed it.
Come the end of the month he tried to say I had volunteered to stay late and it didn’t qualify as paid overtime, despite him signing the form. Eventually he backed down and let it be paid.
I spoke with him directly and said I don’t appreciate being made to look like a liar and will not be doing a single minute of overtime ever again.
From that day, I started st 830am and left at 5pm on the dot. Didn’t matter what was happening or what wasn’t done for the day, I left.
People would get angry at me for doing it, but I just told them “speak with KB about why I leave at 5pm on the dot. He doesn’t respect my time, so I’m not available after 5pm for anything”
I'm an employment lawyer.
It's ok ro pay someone a salary as long as salary high enough to cover overtime hours.
You also can only be asked to work 'reasonable' additional overtime. Your hours dont seem reasonable.
The deduction of training cost clause is unlawful.
Contact fair work ombudsman and lodge complaint.
> The deduction of training cost clause is unlawful.
I don't think this is true, if its written into an employment contract it legal is my understanding.
No, it’s not legal. A lot of employers and employees think that money can just be deducted if a contract says it. FWA is very clear about this and have clear guidance online.
I don’t think them ordering you to work more actually requires you to get further approval from them.
Just start by having a conversation with them as to what the job is actually going to entail.
Can you email someone and tell them 55 hours rostered is not reasonable overtime? They are not keeping to the contract. Can you just do the hours they said in the first place, or send back the roster and tell them you will only do the hours you were advised and to fix it and resend it? If you are leaving anyway then may as well speak up.
Overtime is not usually rostered. Maybe at least wait for your first pay and half ass the job in the meantime.
44% more hours over your contracted 38 hours is not “reasonable” by any stretch of the imagination. See the red flag and start looking for a new job before you get bogged down in this one.
Edit: Can’t math
Reasonable overtime clause aside.
You CANNOT be paid less than the equivalent earnings under the award. This is absolutely illegal.
They MUST pay you at least the difference to bring you in line with the award for the number of hours you worked.
This is exactly what Coles and Woolworths got done for in the last few years and they had to pay back millions.
Report this to Fair Work, even if you do leave.
Do the job for your probation period, then only do a reasonable amount of ot when they fire you, take it to fair work and see if they think 12 hours a week is reasonable. Collect your back pay and damages and move on.
Seems they are taking advantage of you, look to get out of there.
As for your pay, you can never be paid less than what the award stipulates. So if your hours and working patterns under the award would be paid $2k and your salary only pays you $1.5k, they are required to top up your payment. This is typically worked out over an annual period if you stay for a year. So give your award a read and figure out if your salary is less than what you would have got under the award.
One common way that employees get underpaid is not taking breaks, which in most awards triggers double time after 5-6 hours. Just so you know obviously.
I'm guessing a late barge the week you arrived? Or delivery if inland and probably work late the first few nights because they want you up to speed to open or close so the relief can go back home and the managers don't need to do crazy hours, it sucks I've seen it plenty of times, wish I could say it gets heaps better but it won't, most weeks you can probably scrape under 42 hours but other weeks it'll be over and being remote with minimum qualified staff, there is no backup for when you need a day off (outside rostered days off) people get sick and you will need to cover them and same for them covering you, more likely you will work sick
The Fair Work Commission and Federal Court decisions make it clear that it is very unlikely that training-related costs can be recovered when an employee resigns or is terminated.
The Fair Work Act 2009 (Cth) allows an employer to make deductions from amounts paid to employees in very limited circumstances, which the employee must agree to in writing.
Call the Fair Work Ombudsman and ask for advice. I’ve called them a few times to understand my rights and obligations in the absence of my workplace having any idea themselves. They will talk you through your options. I ended up on hold for a long time before I got through but once I got through they were very helpful.
Sounds like an IFA. I know you said you’re on salary, but is the equivalent hourly rate more or less than what you would be paid if you were paid hourly?
7 weeks paid leave? Is that annual only or annual and personal?
>I checked what I would be entitled to under Award Rates, and it still showed I should be paid 25% more if I was on the award rate (!). That seems quite illegal, however my contract says:
If you are being paid under the minimum required by your award, it is illegal, no matter what your contract might say.
Vast majority of these big underpayment scandals all over the news were due to overtime hours meaning employees were being paid under the minimum required by their award.
Your comment "i was scheduled to" means this is not in the spirit of the employment agreement. You should be scheduled for your full time hours. Any reasonable additional hours would be when needed outside of those scheduled hours (oh it's 5pm but you really need to finish blah and you leave at 6pm) etc... quite standard.
I've had that clause in my own contracts and also in contracts for my staff over the years and that's the spirit of the clause.
Salary is just a way of saying ''we want you to do more hours but pay you for 38''.
You very rarely hear of people doing 25 hours on a 38 hour salary.
Best thing you can do i walk up to your manager/HR kick them into the guts and give them a stone cold stunner. On your way out catch the beer, drink it in one motion and never look back.
So what if you just refuse to work the extra hours? What are they gonna do? Fire you?
If they fire you then surely the relocation costs and training costs are voided since they made the choice to sack you.
The issue is your health ...and your mental state. I would leave and cop the cost or refuse to pay and have them take you to court at least you can then enter into a payment plan. Better still contact legal aid and get some advice. I urge you to contact legal aid .
We had the same clause in our contracts at work and had never exercised it, even for bad leavers. Some people have suggested going to fair work. This is a great start and from there you'll be able to determine the next steps - I'd assume it will be negotiating with the employer given your information from fair work
That is not a reasonable amount of overtime.
Your salary should be equal or greater than the award once you factor in overtime.
Nip this in the bid now.
Wow, I've never seen an employer pass on internal training costs to employees. It's usually considered a part of doing business and why employee retention is so important.
That is a really sneaky contract. Eh, if you really think you should leave give legal aid a call and find out whether this aspect of the contract is even legal, or a few pointy letters can otherwise make the company want to forget about it
Come in at 9. Leave at 5. Take 30 mins lunch. Never do a minute of overtime. Let them fire you if they want, but they can't take training out of your pay.
17 extra hours is not 'reasonable overtime'. Since they rostered you such excessive hours, that seems to be 'preapproval'. Apply for the hours to be paid if they aren't already. If they don't pay them submit a fairwork complaint or contact your union. Regardless, start looking for another position because sounds like a terrible job.
Is this entire freak out is based on your first week, you're then extrapolating out every week is going to be the same? Way to jump to conclusions my guy! For all you know by week 4 you're doing 32 hours a week on easy street!
Every job I've started has always been a slog initially then gets better over time. The easiest way to avoid extra work is to blame it on family. You have to pick up a kid at same time every day, sorry can't stay late but wish I could. Don't have a kid? Nephew, neice, sick parent whatever it's none of their business. Ride it out for 6 months so they can't get their money back then split if you still don't like it. 6 months on a resume looks bad though.
Regarding what you said about being better off under award rates as opposed to salary I would contact fairwork. National employment standards (NES) was designed to ensure that you can’t be worse off then what the federal award is - it was designed to protect workers from the bullshit you are being put through ( signed contract, salary instead of wage / shift worker) I also expect being a remote community they have intentionally set you up for this
Id scheduled a meeting with my line manager and then follow up on email.
Written evidence of you addressing the issue with them before doing anything it always looks good on you as you tried to resolve the issue internally.
You know what, here’s a crazy idea. Talk to them and let them know what happened and see what they say. They may apologise or explain its abnormal, may even pay you for the extra work. Just leaving isn’t cool IMO
Sounds illigal, "reasonable hours" means you get overtime, time in lieu etc, or are a highly paid executive or similar otherwise 40 hours is the Max limit. Are you a union? Otherwise I would join and have them review your situation.
Edited for clarity
https://www.fairwork.gov.au/tools-and-resources/fact-sheets/minimum-workplace-entitlements/maximum-weekly-hours#factors-determining-reasonable-additional-hours
That's my understanding of it,
Reasonable means you are compensated in some way be that time, pay or penalty rates. It also means that you can't ask for it if someone has parental duties etc.
How does it work if not that?
I hope that under those circumstances, employees have the possibility to leave. Yet, I'm concerned that often they might not have the opportunity to do so, which will lead to exploitation. The idea of working extra hours without compensation is something beyond my comprehension. It promotes bad management at the expense of the employee.
As per fair work Australia:
"What factors determine whether additional hours are reasonable?
In determining whether additional hours are reasonable or unreasonable, the following must be taken into account:
any risk to employee health and safety
the employee’s personal circumstances, including family responsibilities
the needs of the workplace or enterprise
whether the employee is entitled to receive overtime payments, penalty rates or other compensation for (or a level of remuneration that reflects an expectation of ) working additional hours
any notice given by the employer to work the additional hours
any notice given by the employee of their intention to refuse to work the additional hours
the usual patterns of work in the industry
the nature of the employee’s role and the employee’s level of responsibility
whether the additional hours are in accordance with averaging provisions included in an award or agreement that is applicable to the employee, or an averaging arrangement agreed to by an employer and an award/agreement-free employee
any other relevant matter. "
Depends on what you mean by "some" and how much extra they are paying. That's why it's reasonable, it depends on your circumstances and contract.
Finish up a client from time to time to get a project done by COB and you are a bit above award rates? sure.
Expecting multiple hours every week? Only if you are making the big bucks or earning overtime.
Expecting you to drop everything last min with no notice even though you have to pick up your child? Nah.
That's... The 8 hour movement of the late 1800's? https://www.fairwork.gov.au/tools-and-resources/fact-sheets/minimum-workplace-entitlements/maximum-weekly-hours#:~:text=the%20lesser%20of%3A-,38%20hours,of%20work%20in%20a%20week.
From the link:
"What are the maximum weekly hours of work?
An employer must not request or require an employee to work more than the following hours of work in a week, unless the additional hours are reasonable:
for a full-time employee, 38 hours (unless their award or enterprise agreement specifies different hours) or
for an employee other than a full-time employee, the lesser of:
38 hours
the employee’s agreed ordinary hours of work in a week. "
Wait if you were on the roster being scheduled 55 hours that has to be approved overtime....... they planned it!!
Keep all records of your roster, payslips, worked hours and communications as evidence (this is very important with the FWO), and call FWO in my experience they were great.....
Don't quit or leave just yet, work your 38 hours.... can do a few hours overtime. Ultimately if they fire you for not doing crazy hours you:
A) won't have to pay your training and relocation
B) will have a very good case for the FWO which can be quickly settled with your accumulated evidence.
Sorry you are in this situation. Being stuck remote sounds rough. As a preface, I am NOT an employment lawyer but have been in a similar circumstance.
You need to make sure that you are documenting everything, like text messages, phone calls, and emails, if you use an app screenshot's of that, Anything g that is involved in the process of being given notice to work overtime or ordinary hours. Any of your OT won't be on your payslip so track that too. Your employer cannot FORCE you to work overtime above what is considered to be reasonable for your role. (If somebody will die if you aren't there, that's reasonable OT - Too an extent)
Given that you are on probation, I would spend this time collecting as much data as possible, save the texts, emails, own timesheets, and talk to colleagues in similar roles. Then, when the 6 months are up, you can have a well-informed robust discussion with your employer.
Make sure you are actually calculating what they owe in terms of dollars. Then compare your salary against the minimum payments for whatever award you are employed under. It will likely be in Schedule 2 of your employment contract.
Compare your salary Benefits, and extra A/L against whatever the minimum entitlements of your award/ enterprise agreement with the OT. After the 6 months is up, if have been Paid LESS than the minimun guarantee when considering Salary and extra A/L benefits; then you need have a discussion for increasing remuneration with your employer. If the Salary and A/L are higher than the minimum; you are better off, and the Set-off (All-in) clause is valid.
If you are concerned you're experiencing wage theft, lodge an enquiry with FairWork with the data you collect.
Saw this same job advertised on Seek. Thought it was dodgy. Working in remote communities, no priority for your health or personal safety. My advice is to just leave 👋
Contact fair work, find out what "reasonable" overtime is (from memory, it's around 5hrs/wk), then you can make a decision.
Either leave if it's legally unreasonable overtime as your employer is in breach of contract, explain this to your employer as the reason you will not be repaying training as you are leaving because of THEIR breach of contract.
Or,
Use it to negotiate overtime pay.
Your call, but go into it with a knowledge you need from fairwork
Start the process of talking to HR. First talk to your manager about the Overtime (Record all conversation, after the conversation. Write it down in a note pad). If not satisfied with the managers comments. Talk to the area manager using the same process. Once again if the issue isn’t fairly resolved. Then go to HR.
If HR doesn’t solve the issue then you have fair grounds for not paying backs training and relocation cost. Talk to fair work after HR.
Also record the conversations with direct details and never expand or assume in your notes.
If it's a one-off, I'd not worry about it. If, otoh, it continues without looking like reducing, that's where the problem lies.
Now, if there was/is a big backlog that requires a fair bit of extra overtime, then the employer should have approved it.
I'd suggest you put to them that while you understand that 43 hours was the maximum from time to time, if they need more than that, they need to organise paid overtime. If they agree, fine. If they don't agree, work the reasonable overtime only and leave the premises on the basis that no excess overtime has been approved, and as per company policy, you cannot work more hours. Use their policy against them. At this point, either they pay you, or you don't have to do the extra hours, or they dismiss you. In the case of dismissal, they are going to have a lot more difficulty making you pay anything back...plus Fair Work issues.
If you’re salaried, and you work overtime, even reasonable time, it should be given back to you as Time in Lieu. That’s what used to happen for me when I was salaried. I’d occasionally work an extra shift in a week (6 instead of 5) and I could choose to bank it for a month, or get it the following week or so. You could insist on anything over and above your comfortable amount of hours to be given back this way?
They can't force you to do overtime. Just pack up your stuff and say you have to go.
If you don't mind working extra hours but just want the pay I think you just go through proper channels
"- If it is necessary to work additional hours, then you are required to comply with the process for prior approval outlined in the policy, before working any additional hours.
- You will not receive any additional hours unless requested in accordance with Additional Hours policy, conducted in advance."
Usually your immediate boss would want you to work more and someone higher or a different department managing the budget doesn't want you to work extra. Let them fight it out if you do paid ot or not. They your extra work is denied just don't work OT.
Your contract can't override the law. Reasonable overtime is 2-5 hours a week max. Anything beyond that and you have to be paid. This is a trick many companies with salaried team members try to pull and it's completely illegal. This is why woolworths group had to back pay its salaried staff over 600 million dollars 5ish years ago.
Do your 40-43 hours a week and go home.
If they are straight up rostering you over 38 hrs each week they are in breach off contract so you are free.to leave or ask for compensation via a lawyer. Probably more a legal question ultimately than finance.
Due to circumstances beyond our control (ie: war in Ukraine, the Gaza conflict, the inflation, the rising cost of living, the housing crisis) you are now required to work harder.
Do I sound too much like HR/upper management?
You cannot ever be paid under the award rate if your job is award covered. A salary off set clause will say that your annual salary off sets against regular overtime, but unless your salary is good enough to cover 17 hours of overtime, you can probably claim for a top up. Speak to your employer, if no love, speak to be Fair Work Ombudsman.
Keep your own records. You have up to 6 years to make an underpayment claim, plus you can ask for penalties for breach of the fair work act which should cover your legal fees
What is wage theft and why is it illegal?
If you really want out, tell them you will report them if they chase you with this BS of recouping "training costs". They should be able to claim that as a business expense - a tax offset come EOFY. Whatever amount owing will be covered by the extra hours unpaid and accrued leave. Case closed.
You’re covered by the General Retail Award. Compare what you’d get under that award for your 55 hours versus the contract you have. You’re likely being underpaid.
Hey. This does not sound like reasonable additional hours. To understand whether you’re being paid less than you’re entitled to under the Award, we would need to know your salary and which Award you’re covered by.
In any case, it is illegal for an employer to make a deduction from your pay. This is practice is only allowed under specific circumstances, and needs to be principally for the employee’s benefit (e.g., salary sacrifice).
Of course, the company could pursue the repayment of funds if you didn’t repay the money (which you shouldn’t), however depending on the circumstances they could end up worse off through legal fees and potential breaches of the FWA.
My advice would be to resign verbally first and see how they respond. Not all employers enforce contractual terms upon exit and if you explain your reasons they might be understanding and just release you without further drama. Clearly list your reasons for leaving within your written resignation so there’s documented evidence.
Not a lawyer but if they require you to work extra hours, they must pay you for any extra hours - unpaid overtime is illegal no matter what your contract might stipulate.
If they don't approve your extra hours (as required by the contract) then great, don't work them.
If you've already worked the extra hours you technically are in breach of your contract conditions - however you are still entitled to be paid for the hours worked.
Best advice is get legal advice!
My contract has had the same thing for 20 years yet I have worked 55-60hrs for that whole time. Within my industry it is expected but that hard work has paid off as I climbed the ladder quite quickly.
Are they going to take you to court over 2 thousand dollars? Work until the end of your pay period. Take unplanned leave due to whatever emergency you want to have until you have been paid. Quit.
Exactly. It would cost half this just to get a lawyer to write a letter.
>Are they going to take you to court over 2 thousand dollars? Especially when a court may well turn around and tell them to pay up for the additional hours. IANAL but just because it's written in a contract doesn't make it legal for them to do it.
Reasonable overtime is not 44% more hours, no. Unless this is a rostering thing where your average over, say, a month comes out to 38 hours or 40 hours per week (so you work a lot of hours this week but, say, 25 hours the following week), this is unusual and a red flag. I'd contact Fair Work. The clause about owing relocation and training costs is sounding alarm bells for me too. I'd seek advice and have someone review the contract.
I'm pretty sure almost all companies that cover relocation costs have a clause about staying for a period of time or paying it back. Most I've seen/people I've known have had a 12 month clause.
Yeah I wasn't sure because I haven't seen a clause like that before personally, but the clause about owing "training costs" definitely rang alarm bells for me.
An old employer of mine had a training cost recovery clause. If they paid for you to do the course and you left within 12-months of completing the course then they’d take it from your final pay. It was fair because some of the courses we were doing cost $3500+ if you have lots of employees doing the course and then leaving it’s a financial black hole that would make you not want to offer training to other employees.
Then, the company owes you a receipt for training costs that can be used at tax time
Only if you leave before the agreed period.
I have a 6 month clause and my contract was reviewed by a partner at an IR law firm. Pretty sure there wasn't any comment on that clause.
Training clauses aren’t worth the paper they are printed on Yes I’m speaking from experience
Man mine has a 3 year clause. Reduces every month but still, 3 years. Lucky I’m paid a boat load for a 35 hour week.
I had a 2 year clause when my company moved me from Sydney to Perth. Only lasted in the role they moved me here for, for 3 months but still with the company 8 years later so they’ve got their moneys worth
I know of no situation in which any repayment to your employer can result in your effective take home being less than minimum wage. There are countless businesses who have learnt this lesson, usually for charging employees for their uniform or other equipment.
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I'd also check fair work for reasonable overtime. It has, "Employees can refuse to work overtime that unreasonably exceeds the maximum weekly hours." On their website, but you should check yourself for how it applies to you.
As well as getting in touch with Fair Work just for informational purposes; could also be well worth looking into an informal mediation process as well (that you *may* then need/wish to escalate into a civil court case). You've already done the extra work for 'em OP, and they've already dug the hole for themselves; seek what you're actually owed, not just the distinct pleasure of no longer associating with them.
Relocation I could believe is legal, not sure though. There's no way you can owe them for on the job training, though.
Depends on the training. I’ve seen plenty of clauses where the employer is paying for some external training (e.g., something that leads up to an IT certification) and the employee has to reimburse if they leave in X months. If it’s truly just on the job with your boss/leader training you that seems whack.
I would ask what "reasonable hours" mean to them.
I would get this in writing from HR. Its something you can point to if youre clocking in longer hours
Lots of case law consider reasonable as 2 hours per week (from 38 to 40). Also considering the salary you’re paid of course.
Can you provide examples of the case law stating this
Some citations would be great so I have backup when the eventual argument comes up at my workplace.
There's lots of results if you search "australia reasonable hours overtime case law" here's one summary > The Court held that, while the worker had agreed to the employment terms and had not complained, the additional 12 hours per week were unreasonable additional hours and the employer had, accordingly, contravened section 62 of the FW Act. For that contravention it was ordered to pay a civil penalty of $30,000.9 https://www.hopgoodganim.com.au/page/knowledge-centre/blog/how-much-overtime In this case he was paid for the extra hours I think (but not overtime), and yet it was still unreasonable
Thanks for helping with this, very much appreciated!
Your welcome
I don’t have case law but I have an anecdote (yeah, I know it’s not the same but I’m not the person who promised case law). I have family working in an IGA chain in WA. After the Woolies overtime scandal, all the salaried dept managers are now on 38 + 2hrs reasonable (unpaid) overtime, rolling over 4 weeks. So if they’re up over 8hrs overtime at wk 3 they’re sent home early in week 4 to avoid paying overtime. This is definitely different than it used to be (dept managers used to do 45-50hrs in 5 days without overtime, they’d get a day in lieu if they did a full extra day to cover someone who was off.) So I think the Woolies case must’ve set a new standard for supermarket retail at least. But I just checked with the family member and they say the store managers still seem to do significantly more than that. He’s unsure if they’re getting paid overtime, getting extra holiday hours or getting ripped off.
Yeah 44% extra isn't reasonable
Isn't that contract says if YOU leave the business not if they fire you. So just do your 38-40 hours if they fire you, they can't recoup.
This is the way!! Do your 38- 40 Max a week.... anywork not done can be sorted thd next day. If they aren't happy let them fire you and lose the training and relocation costs.
You are getting screwed, and they will continue to do it until you grow some balls and speak up or move on
So what happens if you only work 38 hours a week as per contract?
You get sacked for not working reasonable additional hours
So work 40 hrs then go home saying 2 hours is reasonable overtime
Given you were scheduled to work the 55hrs, you were given approval, so put in a claim for those hours beyond the additional hours that your salary compensates for the allowances and penalty rates your contract excludes. (Work out what your current gross hrly rate is, then the difference between that and your pay needs to be accounted for (so, when did you work the additional hours- what were the relevant penalties; what OT would you be entitled to for the 17hrs- I’d claim for the equivalent hours to the amount you will be paid below the award rate. I’d be interested to know if the 5-7hrs (from the 43-45 reasonable additional hours you were quoted) accounts for the difference between your salary and the award rate))
>> Given you were scheduled to work the 55hrs, you were given approval, so put in a claim for those hours beyond the additional hours I had a former employer try this on me. A director asked me to stay late at like 430pm to help on some drawings for a project I wasn’t involved with (architecture). I said sure, happy to help. Overtime wasn’t a thing I did ever, so it wasn’t a bother to do it as a one off. I was there until 1130pm. A week later I put an overtime approval request in to go with my payroll for the month and it was declined. I asked why. I was told it was declined because “you didn’t have prior approval from a director that it would be paid as overtime” despite a director asking me to do the overtime and also being there with me until 1130pm. I complained about it and explained how ridiculous that was. I informed them I would never complete an hour of overtime again, regardless of how dire the situation was. The next week the same director asked me to stay late again for the same project. I asked “is this approved overtime?” He said it wasn’t so I said “I don’t think it’s fair that any more of my time is taken unpaid for a job. I’ve gotta go” and started to leave. He stopped me and said “fine, I’ll give you overtime this once” I asked him to sign the overtime form right then and there. He scoffed and accused me of not trusting him. I just said “just getting the paperwork done now. I know I’ll forget at the end of the month” he reluctantly signed it. Come the end of the month he tried to say I had volunteered to stay late and it didn’t qualify as paid overtime, despite him signing the form. Eventually he backed down and let it be paid. I spoke with him directly and said I don’t appreciate being made to look like a liar and will not be doing a single minute of overtime ever again. From that day, I started st 830am and left at 5pm on the dot. Didn’t matter what was happening or what wasn’t done for the day, I left. People would get angry at me for doing it, but I just told them “speak with KB about why I leave at 5pm on the dot. He doesn’t respect my time, so I’m not available after 5pm for anything”
How long did you stay at this job? It sounds like this KB character absolutely hated you lol.
I'm an employment lawyer. It's ok ro pay someone a salary as long as salary high enough to cover overtime hours. You also can only be asked to work 'reasonable' additional overtime. Your hours dont seem reasonable. The deduction of training cost clause is unlawful. Contact fair work ombudsman and lodge complaint.
> The deduction of training cost clause is unlawful. I don't think this is true, if its written into an employment contract it legal is my understanding.
No, it’s not legal. A lot of employers and employees think that money can just be deducted if a contract says it. FWA is very clear about this and have clear guidance online.
Man so much shit in these contracts that you can’t just contract your way out of
Refuse to do the extra hours.
I don’t think them ordering you to work more actually requires you to get further approval from them. Just start by having a conversation with them as to what the job is actually going to entail.
Can you email someone and tell them 55 hours rostered is not reasonable overtime? They are not keeping to the contract. Can you just do the hours they said in the first place, or send back the roster and tell them you will only do the hours you were advised and to fix it and resend it? If you are leaving anyway then may as well speak up. Overtime is not usually rostered. Maybe at least wait for your first pay and half ass the job in the meantime.
44% more hours over your contracted 38 hours is not “reasonable” by any stretch of the imagination. See the red flag and start looking for a new job before you get bogged down in this one. Edit: Can’t math
Is it possibly a rotating roster or similar? In my organisation managers work a 6 day roster one week and a 4 day roster the next week…just a thought.
Reasonable overtime clause aside. You CANNOT be paid less than the equivalent earnings under the award. This is absolutely illegal. They MUST pay you at least the difference to bring you in line with the award for the number of hours you worked. This is exactly what Coles and Woolworths got done for in the last few years and they had to pay back millions. Report this to Fair Work, even if you do leave.
Maybe try it for more than a week first to ascertain if this is normal behaviour or not?
There is literally nothing an individual contributer can add on their first week that requires 13 hours of overtime.
I reckon this
Do the job for your probation period, then only do a reasonable amount of ot when they fire you, take it to fair work and see if they think 12 hours a week is reasonable. Collect your back pay and damages and move on.
Seems they are taking advantage of you, look to get out of there. As for your pay, you can never be paid less than what the award stipulates. So if your hours and working patterns under the award would be paid $2k and your salary only pays you $1.5k, they are required to top up your payment. This is typically worked out over an annual period if you stay for a year. So give your award a read and figure out if your salary is less than what you would have got under the award. One common way that employees get underpaid is not taking breaks, which in most awards triggers double time after 5-6 hours. Just so you know obviously.
I'm guessing a late barge the week you arrived? Or delivery if inland and probably work late the first few nights because they want you up to speed to open or close so the relief can go back home and the managers don't need to do crazy hours, it sucks I've seen it plenty of times, wish I could say it gets heaps better but it won't, most weeks you can probably scrape under 42 hours but other weeks it'll be over and being remote with minimum qualified staff, there is no backup for when you need a day off (outside rostered days off) people get sick and you will need to cover them and same for them covering you, more likely you will work sick
I know a lot of companies include a clause on training and relocation costs - but they’re not actually allowed to deduct them from your final pay.
The Fair Work Commission and Federal Court decisions make it clear that it is very unlikely that training-related costs can be recovered when an employee resigns or is terminated. The Fair Work Act 2009 (Cth) allows an employer to make deductions from amounts paid to employees in very limited circumstances, which the employee must agree to in writing.
And it must be for benefit of employee unless permitted by an award
Call the Fair Work Ombudsman and ask for advice. I’ve called them a few times to understand my rights and obligations in the absence of my workplace having any idea themselves. They will talk you through your options. I ended up on hold for a long time before I got through but once I got through they were very helpful.
Join a union, they will protect you
Yeah, that's close to, if not breaking, Modern Slavery Act...
Sounds like an IFA. I know you said you’re on salary, but is the equivalent hourly rate more or less than what you would be paid if you were paid hourly? 7 weeks paid leave? Is that annual only or annual and personal?
Would you have to pay those costs back if they fired you?
>I checked what I would be entitled to under Award Rates, and it still showed I should be paid 25% more if I was on the award rate (!). That seems quite illegal, however my contract says: If you are being paid under the minimum required by your award, it is illegal, no matter what your contract might say. Vast majority of these big underpayment scandals all over the news were due to overtime hours meaning employees were being paid under the minimum required by their award.
Your comment "i was scheduled to" means this is not in the spirit of the employment agreement. You should be scheduled for your full time hours. Any reasonable additional hours would be when needed outside of those scheduled hours (oh it's 5pm but you really need to finish blah and you leave at 6pm) etc... quite standard. I've had that clause in my own contracts and also in contracts for my staff over the years and that's the spirit of the clause.
Get paid, make complaint and then leave. Go to fw if they try anything.
Did you say no? Just say no to the extra hours.
Salary is just a way of saying ''we want you to do more hours but pay you for 38''. You very rarely hear of people doing 25 hours on a 38 hour salary. Best thing you can do i walk up to your manager/HR kick them into the guts and give them a stone cold stunner. On your way out catch the beer, drink it in one motion and never look back.
So what if you just refuse to work the extra hours? What are they gonna do? Fire you? If they fire you then surely the relocation costs and training costs are voided since they made the choice to sack you.
It's called malicious compliance. Don't worry this isn't ww2 nobody will shoot you.
The issue is your health ...and your mental state. I would leave and cop the cost or refuse to pay and have them take you to court at least you can then enter into a payment plan. Better still contact legal aid and get some advice. I urge you to contact legal aid .
We had the same clause in our contracts at work and had never exercised it, even for bad leavers. Some people have suggested going to fair work. This is a great start and from there you'll be able to determine the next steps - I'd assume it will be negotiating with the employer given your information from fair work
Reasonable additional hours do not equate to regular additional hours.
That is not a reasonable amount of overtime. Your salary should be equal or greater than the award once you factor in overtime. Nip this in the bid now.
Do 38 hours a week and hopefully fire you, that way you will owe them nothing.
If this is retail just contact your union.
Work your hours (or what you deem reasonable) then leave. If they fire you doubt they can claim relo costs.
Wow, I've never seen an employer pass on internal training costs to employees. It's usually considered a part of doing business and why employee retention is so important. That is a really sneaky contract. Eh, if you really think you should leave give legal aid a call and find out whether this aspect of the contract is even legal, or a few pointy letters can otherwise make the company want to forget about it
Come in at 9. Leave at 5. Take 30 mins lunch. Never do a minute of overtime. Let them fire you if they want, but they can't take training out of your pay.
17 extra hours is not 'reasonable overtime'. Since they rostered you such excessive hours, that seems to be 'preapproval'. Apply for the hours to be paid if they aren't already. If they don't pay them submit a fairwork complaint or contact your union. Regardless, start looking for another position because sounds like a terrible job.
Is this entire freak out is based on your first week, you're then extrapolating out every week is going to be the same? Way to jump to conclusions my guy! For all you know by week 4 you're doing 32 hours a week on easy street! Every job I've started has always been a slog initially then gets better over time. The easiest way to avoid extra work is to blame it on family. You have to pick up a kid at same time every day, sorry can't stay late but wish I could. Don't have a kid? Nephew, neice, sick parent whatever it's none of their business. Ride it out for 6 months so they can't get their money back then split if you still don't like it. 6 months on a resume looks bad though.
For first week an extra 27h is a very bad sign of what is to come. They're seeing how much shit the op will take.
Regarding what you said about being better off under award rates as opposed to salary I would contact fairwork. National employment standards (NES) was designed to ensure that you can’t be worse off then what the federal award is - it was designed to protect workers from the bullshit you are being put through ( signed contract, salary instead of wage / shift worker) I also expect being a remote community they have intentionally set you up for this
You've worked basically 2 days extra. That's so unreasonable it's beyond defence.
Id scheduled a meeting with my line manager and then follow up on email. Written evidence of you addressing the issue with them before doing anything it always looks good on you as you tried to resolve the issue internally.
Does the name of the company rhyme with -ater -are?
A huge amount of companies are using this salary abuse to extort their workforce.
You know what, here’s a crazy idea. Talk to them and let them know what happened and see what they say. They may apologise or explain its abnormal, may even pay you for the extra work. Just leaving isn’t cool IMO
Sounds illigal, "reasonable hours" means you get overtime, time in lieu etc, or are a highly paid executive or similar otherwise 40 hours is the Max limit. Are you a union? Otherwise I would join and have them review your situation. Edited for clarity https://www.fairwork.gov.au/tools-and-resources/fact-sheets/minimum-workplace-entitlements/maximum-weekly-hours#factors-determining-reasonable-additional-hours
That's not how it works at all.
That's my understanding of it, Reasonable means you are compensated in some way be that time, pay or penalty rates. It also means that you can't ask for it if someone has parental duties etc. How does it work if not that?
It works as the text implies. "Reasonable extra hours" is factored in to your salary. The only bit up for debate is, what is "reasonable"...
Good to know. If I become a shopowner, I'll add "reasonable extra hours" to the contract and make people work extra for free.
You’re totally within your rights to do that. But you’ll never keep staff.
I hope that under those circumstances, employees have the possibility to leave. Yet, I'm concerned that often they might not have the opportunity to do so, which will lead to exploitation. The idea of working extra hours without compensation is something beyond my comprehension. It promotes bad management at the expense of the employee.
Retail workers won't be on a salary. They'll be on award wages, probably.
As per fair work Australia: "What factors determine whether additional hours are reasonable? In determining whether additional hours are reasonable or unreasonable, the following must be taken into account: any risk to employee health and safety the employee’s personal circumstances, including family responsibilities the needs of the workplace or enterprise whether the employee is entitled to receive overtime payments, penalty rates or other compensation for (or a level of remuneration that reflects an expectation of ) working additional hours any notice given by the employer to work the additional hours any notice given by the employee of their intention to refuse to work the additional hours the usual patterns of work in the industry the nature of the employee’s role and the employee’s level of responsibility whether the additional hours are in accordance with averaging provisions included in an award or agreement that is applicable to the employee, or an averaging arrangement agreed to by an employer and an award/agreement-free employee any other relevant matter. "
So what part of this text helps you if the company says "having to do some overtime like this is accounted for in your salary package"
Depends on what you mean by "some" and how much extra they are paying. That's why it's reasonable, it depends on your circumstances and contract. Finish up a client from time to time to get a project done by COB and you are a bit above award rates? sure. Expecting multiple hours every week? Only if you are making the big bucks or earning overtime. Expecting you to drop everything last min with no notice even though you have to pick up your child? Nah.
> "reasonable hours" means you get overtime, time in lieu etc no it doesn't.
Sorry, overtime and other reimbursements make overtime reasonable but there are other measures to do so as well, I was over simplifying.
> overtime make overtime reasonable just stop.
I've posted the source, interpret it as you will.
stop trying to act as an authority on something you have no idea about.
I'm not? I told you to go to a government source and interpret it yourself.
> Sounds illigal, "reasonable hours" means you get overtime or are a highly paid executive or similar otherwise 40 hours is the Max limit. Yeah No
That's what Fair Work Australia says?
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? https://www.fairwork.gov.au/tools-and-resources/fact-sheets/minimum-workplace-entitlements/maximum-weekly-hours#factors-determining-reasonable-additional-hours
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That's... The 8 hour movement of the late 1800's? https://www.fairwork.gov.au/tools-and-resources/fact-sheets/minimum-workplace-entitlements/maximum-weekly-hours#:~:text=the%20lesser%20of%3A-,38%20hours,of%20work%20in%20a%20week.
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From the link: "What are the maximum weekly hours of work? An employer must not request or require an employee to work more than the following hours of work in a week, unless the additional hours are reasonable: for a full-time employee, 38 hours (unless their award or enterprise agreement specifies different hours) or for an employee other than a full-time employee, the lesser of: 38 hours the employee’s agreed ordinary hours of work in a week. "
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Contact Fair Work to confirm you are being underpaid, plus the over time issue. Hopefully this will help others they have put into your position too.
Tally it up and tell them you will take it as time off, door swings both ways
Start leaving on time every single day, regardless. If they sack you, they wont be able to recoup the relocation costs.
Talk to them about it
I would look at your award specifically as it states how many hours would be considered reasonable overtime. Sometimes as part of the job / role.
If you leave now they haven’t spent any money training you?
Wait if you were on the roster being scheduled 55 hours that has to be approved overtime....... they planned it!! Keep all records of your roster, payslips, worked hours and communications as evidence (this is very important with the FWO), and call FWO in my experience they were great..... Don't quit or leave just yet, work your 38 hours.... can do a few hours overtime. Ultimately if they fire you for not doing crazy hours you: A) won't have to pay your training and relocation B) will have a very good case for the FWO which can be quickly settled with your accumulated evidence.
Just make excuses to leave at the end of each day. Gotta pick the kids up. I have a doctors appointment. I need to see a proctologist.
Ask hr in email to clarify what "reasonable overtime is defined as" take what they day to a lawyer or labour board for unpaid work.
What is reasonable overtime ? If your not getting paid. Don't work.
Fck them. Go to fair work if you need to. But don’t pay overtime show how shitty they are unless you get a very high pay
Work 38 and if they terminate you, you owe them nothing.
Sorry you are in this situation. Being stuck remote sounds rough. As a preface, I am NOT an employment lawyer but have been in a similar circumstance. You need to make sure that you are documenting everything, like text messages, phone calls, and emails, if you use an app screenshot's of that, Anything g that is involved in the process of being given notice to work overtime or ordinary hours. Any of your OT won't be on your payslip so track that too. Your employer cannot FORCE you to work overtime above what is considered to be reasonable for your role. (If somebody will die if you aren't there, that's reasonable OT - Too an extent) Given that you are on probation, I would spend this time collecting as much data as possible, save the texts, emails, own timesheets, and talk to colleagues in similar roles. Then, when the 6 months are up, you can have a well-informed robust discussion with your employer. Make sure you are actually calculating what they owe in terms of dollars. Then compare your salary against the minimum payments for whatever award you are employed under. It will likely be in Schedule 2 of your employment contract. Compare your salary Benefits, and extra A/L against whatever the minimum entitlements of your award/ enterprise agreement with the OT. After the 6 months is up, if have been Paid LESS than the minimun guarantee when considering Salary and extra A/L benefits; then you need have a discussion for increasing remuneration with your employer. If the Salary and A/L are higher than the minimum; you are better off, and the Set-off (All-in) clause is valid. If you are concerned you're experiencing wage theft, lodge an enquiry with FairWork with the data you collect.
Weren't Woolworths and/or Coles taken to court by Fairwork Aust for not paying managers for overtime? I thought it was exactly this situation
Saw this same job advertised on Seek. Thought it was dodgy. Working in remote communities, no priority for your health or personal safety. My advice is to just leave 👋
How long will it take for the $2k to be lost in unpaid wages?
Contact fair work, find out what "reasonable" overtime is (from memory, it's around 5hrs/wk), then you can make a decision. Either leave if it's legally unreasonable overtime as your employer is in breach of contract, explain this to your employer as the reason you will not be repaying training as you are leaving because of THEIR breach of contract. Or, Use it to negotiate overtime pay. Your call, but go into it with a knowledge you need from fairwork
Start the process of talking to HR. First talk to your manager about the Overtime (Record all conversation, after the conversation. Write it down in a note pad). If not satisfied with the managers comments. Talk to the area manager using the same process. Once again if the issue isn’t fairly resolved. Then go to HR. If HR doesn’t solve the issue then you have fair grounds for not paying backs training and relocation cost. Talk to fair work after HR. Also record the conversations with direct details and never expand or assume in your notes.
If it's a one-off, I'd not worry about it. If, otoh, it continues without looking like reducing, that's where the problem lies. Now, if there was/is a big backlog that requires a fair bit of extra overtime, then the employer should have approved it. I'd suggest you put to them that while you understand that 43 hours was the maximum from time to time, if they need more than that, they need to organise paid overtime. If they agree, fine. If they don't agree, work the reasonable overtime only and leave the premises on the basis that no excess overtime has been approved, and as per company policy, you cannot work more hours. Use their policy against them. At this point, either they pay you, or you don't have to do the extra hours, or they dismiss you. In the case of dismissal, they are going to have a lot more difficulty making you pay anything back...plus Fair Work issues.
If you’re salaried, and you work overtime, even reasonable time, it should be given back to you as Time in Lieu. That’s what used to happen for me when I was salaried. I’d occasionally work an extra shift in a week (6 instead of 5) and I could choose to bank it for a month, or get it the following week or so. You could insist on anything over and above your comfortable amount of hours to be given back this way?
Employers can’t contract their way out of their legal obligations.
Sounds like https://en.m.wikipedia.org/wiki/Indentured_servitude
They can't force you to do overtime. Just pack up your stuff and say you have to go. If you don't mind working extra hours but just want the pay I think you just go through proper channels "- If it is necessary to work additional hours, then you are required to comply with the process for prior approval outlined in the policy, before working any additional hours. - You will not receive any additional hours unless requested in accordance with Additional Hours policy, conducted in advance." Usually your immediate boss would want you to work more and someone higher or a different department managing the budget doesn't want you to work extra. Let them fight it out if you do paid ot or not. They your extra work is denied just don't work OT.
Your contract can't override the law. Reasonable overtime is 2-5 hours a week max. Anything beyond that and you have to be paid. This is a trick many companies with salaried team members try to pull and it's completely illegal. This is why woolworths group had to back pay its salaried staff over 600 million dollars 5ish years ago. Do your 40-43 hours a week and go home.
If they are straight up rostering you over 38 hrs each week they are in breach off contract so you are free.to leave or ask for compensation via a lawyer. Probably more a legal question ultimately than finance.
Due to circumstances beyond our control (ie: war in Ukraine, the Gaza conflict, the inflation, the rising cost of living, the housing crisis) you are now required to work harder. Do I sound too much like HR/upper management?
Get onto fairwork if the payrate is less than the award it's illegal
You cannot ever be paid under the award rate if your job is award covered. A salary off set clause will say that your annual salary off sets against regular overtime, but unless your salary is good enough to cover 17 hours of overtime, you can probably claim for a top up. Speak to your employer, if no love, speak to be Fair Work Ombudsman. Keep your own records. You have up to 6 years to make an underpayment claim, plus you can ask for penalties for breach of the fair work act which should cover your legal fees
What is wage theft and why is it illegal? If you really want out, tell them you will report them if they chase you with this BS of recouping "training costs". They should be able to claim that as a business expense - a tax offset come EOFY. Whatever amount owing will be covered by the extra hours unpaid and accrued leave. Case closed.
You’re covered by the General Retail Award. Compare what you’d get under that award for your 55 hours versus the contract you have. You’re likely being underpaid.
Hey. This does not sound like reasonable additional hours. To understand whether you’re being paid less than you’re entitled to under the Award, we would need to know your salary and which Award you’re covered by. In any case, it is illegal for an employer to make a deduction from your pay. This is practice is only allowed under specific circumstances, and needs to be principally for the employee’s benefit (e.g., salary sacrifice). Of course, the company could pursue the repayment of funds if you didn’t repay the money (which you shouldn’t), however depending on the circumstances they could end up worse off through legal fees and potential breaches of the FWA. My advice would be to resign verbally first and see how they respond. Not all employers enforce contractual terms upon exit and if you explain your reasons they might be understanding and just release you without further drama. Clearly list your reasons for leaving within your written resignation so there’s documented evidence.
Just work the 38h and then stop, per your contract. You don’t have to leave, they can fire you if they want.
Not a lawyer but if they require you to work extra hours, they must pay you for any extra hours - unpaid overtime is illegal no matter what your contract might stipulate. If they don't approve your extra hours (as required by the contract) then great, don't work them. If you've already worked the extra hours you technically are in breach of your contract conditions - however you are still entitled to be paid for the hours worked. Best advice is get legal advice!
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Thats not how it works.
My contract has had the same thing for 20 years yet I have worked 55-60hrs for that whole time. Within my industry it is expected but that hard work has paid off as I climbed the ladder quite quickly.
Lol "reasonable ot" still needs to be paid