Day Care Treating Employees Illegally

• 

  PVA on 26/04/2016 - 16:34

  +3

  No-one here can say for sure becuase no one knows what the employment contract says.
  Best you contact Fair Work Australia and ask. I have contacted them before, employer doesn't need to know.

  • 

    deanylev on 26/04/2016 - 16:34

    So if it's in the contract, but against the law, are their hands tied? Or would Fair Work do something about it?

    • 

      chumlee on 26/04/2016 - 16:37

      If it's against the law it's against the law. An employer cannot contract out of their legal obligations

    • 

      PVA on 26/04/2016 - 16:39

      +2

      it may be not against the law, I dont know.
      My son worked at hungry jacks and they dont pay extra working, say Christmas day, new years day - any public holiday - that is legal because it is part of the work contract/agreement.

      I have contacted fair work before, they are really good to deal with, even call them - the employer wont know, don't let the employer scare people into thinking they cant do anything.
      Or get your mum to talk to her union, they will help a lot too.

      And to be honest if the company is that bad it might be best to go somewhere else for work anyway.

• 

  Smulder on 26/04/2016 - 16:58

  Employers can force employees to take leave under certain circumstances.

  See Here

  • 

    deanylev on 26/04/2016 - 17:11

    That most certainly does not apply to this situation at all.

    • 

      airzone on 26/04/2016 - 20:53

      +1

      It most certainly does. According to the child services award (i.e. childcare):

      Non-Christmas shut down
      Employees can also be directed to take annual leave during a shut down when a business is open for more than 48 weeks in a year. They have to be given at >least 4 weeks notice before the leave needs to be taken.

      If an employee doesn't have enough annual leave to cover the shutdown, they can agree with the employer to take:

      annual leave in advance or
      unpaid leave.
      If an employee doesn't agree to either and there is no work available, they have to be paid their ordinary pay rate for the shut down. They can't be >forced to take unpaid leave.

      The bottom bit is interesting, but is only relevant if the employee has no annual leave saved.

      http://awardviewer.fwo.gov.au/award/show/MA000120#P739_61530

• 

  pao2x on 26/04/2016 - 19:40

  Have you checked the contract?

  • 

    deanylev on 26/04/2016 - 19:43

    I believe it does state that they're allowed to do this, but surely that doesn't make it okay? It's still illegal

    • 

      airzone on 26/04/2016 - 21:03

      +3

      Legal obligation cannot be waived in a contract. The real question is whether forcing employees to take annual leave is illegal.. And it's not (provided the right circumstances apply).

• 

  nanonoise on 26/04/2016 - 19:44

  +1

  Start with the National Employment Standards, nothing can negotiate away these minimum standards - https://www.fairwork.gov.au/employee-entitlements/national-e…

• 

  MercSal on 26/04/2016 - 19:51

  +1

  United Voice has a very strong Early Childcare workers section. I'd get in touch with them.

• 

  airzone on 26/04/2016 - 21:29

  +8

  So my mother works at a day care, that happens to be a Jewish day care. The employees are treated very poorly (in fact illegally), but the worst offense of all has to do with leave. Employees, whether they're of the faith or not, are forced to take leave on Jewish holidays, and this comes out of their regular leave, whether they like it or not.

  They can do this, provided conditions as specified in the relevant award are met.

  They used to do something even worse. On public holidays employees were made to work for free, because 'The Jewish holidays we pay you for make up for these holidays, we just trade them'. It is suspected this was reported by an employee, and so they changed it to the above.

  I expect this to be illegal, hence the practice was most likely changed when challenged. Irrelevant discussion now except for painting a picture of the employer's attitude.

  Once, an employee was forced to take leave on a regular day because she was 'Not really needed on that day'.

  I expect we are talking about a full time / part time permanent staff member, not casual. They can do this, provided conditions as specified in the relevant award are met. However a call the day before doesn't meet the conditions. Devil's in the details.

  Am I right in saying that's totally illegal? When the employees speak up, they are told their contracts allow them to do this, and are told if they don't like it, they're welcome to leave.

  It depends on what they are speaking up about. An employer can direct staff to work in a reasonable way in accordance with their terms of employment within relevant laws.. This could mean that I issue out a Jewish holiday calendar with notice that you will be taking annual leave on these days. As long as it's in accordance to the award's conditions, then suck it up princess. However this "threat" is fairly general in use and doesn't always apply.. e.g. being directed to take leave on short notice. When it comes to this type of discussion, you need to know, not suppose.

  Everyone is to scared to do anything about it, and so I filled out an anonymous report online. My mother told me not to send it (she thinks they'll somehow know it's her son out of the 30 odd employees), so before I do, I'd like some advice or some suggestions.

  So yeah, what's your take on this?

  There's a number of red flags here. The employer seems bad, so I'd suggest finding somewhere else to work. You might settle your specific grievances with a poor employer, but at the end of the day, you'll drive them to finding a legally acceptable way of being a dick to you. The real unfortunate thing is that it could simply be the HR manager who is on a power trip whipping the employees along, while delivering success stories to their boss. I've seen first hand the damage a poisonous HR manager can do to a business…. But if you decide to file a report, make sure that you have substantive evidence, not just hear-say.

  • 

    deanylev on 26/04/2016 - 21:34

    +1 for the very detailed response, and completely answering all my questions. Thanks a lot :)

    • 

      airzone on 26/04/2016 - 21:47

      +1

      Lol anytime. In my workplace, we close over xmas / new year period. It's a similar thing where leave is enforced (and given in advance if required). I feel a little sorry for one of my guys, who happens to be a young, single, devout Muslim with no connection to the holiday. He's not on an award and we absolutely do have the right to do this. That said, I actually feel bad about it and have him come in to do maintenance / tape changes in exchange for free leave on days of his own choosing (which is a general offering so as not to discriminate, however us older family guys are happy to have leave where we can have our phones turned off). Which is essentially the difference here - the staff have to take the time off. The difference in how this requirement is executed has lead to an unhappy child care facility vs a happy IT department.

• 

  jabbairc on 27/04/2016 - 09:15

  @airzone spot on from experience also :)