My wife recently joined an aged care in rural WA as a registered nurse. The employer is paying her award wages. Last week she had to work overtime for 2 hours. The CEO is refusing to pay her over time saying that it is her problem not being able to finish her job by the end of the shift. She has tried her maximum to finish her job in time and has not taken lunch or tea breaks during the shift. Is an employer legally allowed to refuse payment for overtime work? What to do about it?
Employer Refusing to Pay Overtime. What to Do?
Beven2008 on 16/01/2018 - 14:07
Comments
Almost all nurses working there does not finish doing their work by the end of the shift. Is it not exploitation of workers?
It is exploitation of all the nurses. There is a saying "let it break". She should tell the boss she has done the hours she has been rostered to do and she is going. If he wants to fire her then she will take him to the tribunal for unfair dismissal. I don't see the boss doing anything but backing down.
The problem is, she is in probation for the first three months. It is easy for the employer to say that she is not competent and fire her.
@Beven2008: Well, two can play that game. If she wants to keep the job then she may have to suck it up for 3 months and then work to rule. Even on probation they can't just fire her for no reason - if she can show that the work is overloaded then the owner of the place can still be done for unfair dismissal.
just on that probation period
http://www.fairworkcentre.com.au/newsblog/General/What-is-a-…it may not actually be 3 months unless specified in the employment agreement
@try2bhelpful: Well from what i've seen in manufacturing industry, you don't even really need to prove the work is overloaded. They can't just fire you for no reason without taking certain disciplinary steps. Its all about documentation at the end of the day, by your partner or the clinic. They would have to write her up for poor performance, which would then need to usually be followed up. As far as I'm aware, you can pretty much not get fired from a full-time professional job (i'm not talking waitress, hairdresser, etc) without some kind of formal process
Also does her contract mention overtime anywhere? Because I know that my white-collar contract says that i'm expected to work a "reasonable" number of overtime hours to complete my tasks when required, which I personally have always thought was a crock but everywhere does it.
I think it maybe a union issue frankly, as much as I hate the union guys
If he wants to fire her then she will take him to the tribunal for unfair dismissal.
Funny how you assume the boss is male.
@Beven2008: The important thing for her to do is to speak up, CEO is probably a bit high for this right now, also as hard as it is try not to make it about money, more the fact that she is feeling short handed to her supervisor. Ask for solutions from senior nurses or staff who want her there as much as anybody if there is anything that can be done to help organise streamline the day. even if they come back with nothing you have shown to be proactive in searching for a more efficient way to work that meets the overlords expectation.
This all becomes evidence or proof if required later
She also needs to document her day and including any requests made to peers or supervisors for assistance due to increased workload.
Any requests made of her that are not her direct duty but was instructed to do so. e.g. nurse 1 was having a difficult day so supervising nurse requested i help with that patient 2 and 3 before continuing normal duties. took 1 hour of my normal day.
She shouldn't get into the bad habit skipping breaks otherwise she will end up running into the ground and that helps nobody.
It's another thankless job that some things can take 15 mins with a nice compliant patient and an hour with someone being difficult or terrified of what your trying to do to help.
I find it hard to see where they gather the metrics or norms as each patient is different.
Any requests for unreasonable hours can be made after the 3 months if that make you all feel safer, she would have picked up the general goings on from the others too by then and find thats she is being given the same rough treatment as everyone.
@Toons:
Thank for your inputs, she is improving her performance and is able to perform her duties faster and within time.. I hope that she will be faster soon so that she can find time to take her breaks. It was difficult for her since she was new and was not familiar with residents and their requirements. some residents do not co operate with new staff. I started this post out of the disappointment of her being denied the payment for her hard work.@stumo: the male "he" is taken to be both men and women in standard english wordage and some blokes get their knickers in a not if you try to use "she" as the general indicator. However, manufacture your outrage as much as you like.
In my salaried profession, contracts usually say 'reasonable' overtime too …and sometimes this means an extra 10-20 hrs of overtime a week (on top of a 40 hr week) for no pay.
Hope this makes the OP feel better!
@Shamdog: they aren't all bad but I often feel like most aren't REALLY interested in protecting the workers? More just kinds going through the motions and pretending to protect by making s fuss over nothing
@stumo: look up 'he' in the dictionary
He or she; generic third person singular pronoun, used to refer to a person or animal of either sex (this sense of 'he' is regarded as politically incorrect in some circles)
@Dadidalol: 20 hrs overtime a week, and you call it 'reasonable' ? You are part of the reason the work environment has become so shitty. You do that, and suddenly it's expected from everyone.
That would be 4 hours a day, or you work on weekends. Don't you have a life ?
@cameldownunder: In a professional environment, 60 hours a week is a lot, but would not be considered "excessive".
@try2bhelpful: no it is not. Perhaps it is for old people, but if I said “if a student is smart, he will work hard” younger people will assume all the students are male.
Unfortunately in some professions the reality is that 50-60 hours really isn't considered excessive by the employer's standards. Not saying that I work these hours willingly but unfortunately it's always been this way and doing less than your peers would impact your perceived work ethics (tall poppy syndrome), salary reviews and cost you valuable career advancement opportunities. I still count myself lucky as some of my uni mates who went on to do banking work 70 hour weeks as a minimum.
And yes, we still go to the gym, eat out, have families etc.Just putting things into perspective here irrespective of pay.
I just wanted to point out that both you and @dadidalol have noted references to 20 hours of overtime. Neither made it clear whether you think 'overtime' means 'work that you do without being paid' because that's not actually the definition of overtime as I understand it from the industrial relations context.
You can be required to do overtime but legally you cannot be required to do overtime and not be paid for it.
Depending on the award or contract there might be clauses that refer to overtime or even what is reasonable but they still assume you are being paid for the extra hours (with penalty rates and so on being a separate subset of discussion).
None of them assume you're doing the hours 'for free' except by your own choice? (and noting that in the real world lots of people feel compelled to do work for free for fear of losing their job otherwise).
@jellykingdom: Yeah most professional jobs have some clause about 'reasonable overtime'. Personally I work on the theory that overtime that I choose to do (to get stuff done) is unpaid, overtime that they ask me to do is paid.
@AddNinja: I do not think you represent "all the young people". I think that many of them will follow standard English.
@Dadidalol: salary reviews and cost you valuable career advancement opportunities.
Exactly what I am saying. Work 10 hours a day, minus 2 hour to get to-from there, and your life is reduced to 8PM to 8 AM.
You still have the time to make your kids breakfast, and kiss them goodnight when they go to sleep.@Beven2008: I do understand that being underpaid can be quite a kick in the guts when your giving your all, i'm also not saying she doesn't deserve to be paid.
Sometimes you need to be a little patient and use the system they are using against you.
as you stated >It was difficult for her since she was new and was not familiar with residents and their requirements. some residents do not co operate with new staff. (why i mentioned i don't understand the norms or metrics applied to a moving target)
I guess at the end of the day i''m suggesting to cover all the bases in your control first, choose when to fight the battles and make sure you have your bases covered, there is no statute of limitations. getting all of that right will be worth more to you than a few weeks, months on the unemployment line than a couple of hours pay you can gain back later.
It's also not entirely her problem as you said was stated was the comment from the CEO the hierarchy of staff should be helping including any professional development that will help with her duties.
wish her the best with her career and i hope she starts taking breaks so she can perform at a level above worn out tired and hungry.
@try2bhelpful: I don't represent young people, but I do teach them. Using "he" as a generic pronoun is no longer standard English at least according to the style guides and grammars I have. Think when the last time was when you heard it in spoken English… I haven't heard it in 10 years, and the only person I can imagine using it would be old, male, sure of himself and certain that young people don't speak English properly.
My contract states that my annual salary package is inclusive of the ordinary office hours of 8:45am - 5pm and 'reasonable overtime'.
I would think that this is pretty standard for professional roles although I guess the interpretation of what's 'reasonable' varies from workplace to workplace and industry to industry.I have never heard of anyone at my current firm or prior workplaces getting paid extra for this 'overtime' work as we are not paid by the hour, although the firm pays for dinner when we work past dinner time and for a taxi when we work past 7pm.
Hope this explains things.
That sure as shit is excessive. It's a 38 hour week. You can't just add over 50% to it and call it reasonable unpaid overtime
@AddNinja: if the gender is unknown I would expect most people use “he”. Happy to be corrected if society has moved on. As a young “she” in the IT industry I queried why some had addressed me as “Mr” in a letter even though my name was obviously female. I was told there weren’t many women so they hadn’t bothered to change the program.
Your contract may refer to 'reasonable overtime' and that's not an issue at all, but where you haven't heard of anyone getting paid for it seems to be a lack of knowledge or a misunderstanding on what overtime is.
You can be asked to do overtime. If your contract says you are required to do reasonable amounts, it can even be grounds for dismissal if you refuse to work overtime.
Nowhere in the legislation is there a requirement that says this extra work you do is required to be done for free.
That is something that you, people at your current firm and people at prior workplaces are choosing to do voluntarily (i.e you are doing this akin to making a donation to your employer of your personal money). You're completely free to do this if you think your employer needs you to give them money and of course as I mentioned, there's plenty of places where people do this because of the fear of losing their jobs if they don't. It is a choice though.
For the record, I often work extra hours (I'm a consultant) and don't bill the client for those hours - but that doesn't mean I'm not aware that I'm making a decision and that I don't keep track of what that costs me (or what I see as extra value the client gets at no additional cost). And of course at a personal level sometimes I'm doing this because I enjoy working on the project and at other times because I think I haven't done enough (at the right level) within the allocated hours and I can make up for that by putting in extra hours at my own cost.
However this still comes back to the core point (also made by some others I think) - overtime needs to be compensated for in some way and it's not the employer's right to require it for free. Whether that compensation is time off in lieu or extra pay or something else should be covered by an award, eba or individual contract..
the male "he" is taken to be both men and women in standard english wordage and some blokes get their knickers in a not if you try to use "she" as the general indicator. However, manufacture your outrage as much as you like.
That's a problem because it's the feminists, and women in general who get outraged when you use 'he' to mean both sexes. So maybe don't use either?
As a young “she” in the IT industry I queried why some had addressed me as “Mr” in a letter even though my name was obviously female.
That's odd, because as a guy I sometimes get referred to as "Ms." Never been called Miss or Mrs though.
@Dadidalol: That's standard for salary packages. But OP did not state his wife was on a salary, as far as I know.
No, doing this constantly is straight up excessive and devaluing your worth. There's a big difference between doing some extra hours on occasion to get something done ("reasonable overtime") vs the employer just "expecting" it (ie. exploiting you).
@lostn: not that unusual in the IT industry for there to be a lack of acknowledgement of females being present. It is getting better though. The “ms” might be just a point. I’ve had documentation from my accountant calling me “mrs”, even though my other half and I have different surnames and he has known us for decades. Personally I would like to see a gender neutral honorific.
@AddNinja: I think it was just the "work experience kid" typing up the documentation. I love my man deeply but never wanted to get married, and I think it is nobody's business but mine if I'm married or not, so have gone with "ms" since I was young - works better in a professional environment as guys usually take it to mean I won't take crap from them; better a ball breaker than a piece of meat.
@Dadidalol: if you're working a 40 hour week you are already working 2 hours a week overtime. In Australia, 38 hours is the maximum required hours an employer can place on a staff member (see https://www.fairwork.gov.au/how-we-will-help/templates-and-g…)
As to what constitutes "reasonable", and additional 25-50% of your hours regularly would hardly ever be considered reasonable, but 2-4 hours would nearly always be considered reasonable. Partly it comes down to the salary, which should be more than required to cover the payment of overtime if your were earning wages and paid overtime for that extra work. As a rule of thumb, if you are working 20 hours overtime regularly, you would need your salary to be roughly double what wage earner would get for working 38 hours a week. I suspect that the "10-20 hours… on top of a 40 hr week" would be very occasional. If your employer doesn't give you some extra time off in lieu when that happens I suggest you find a new employer. If you work in IT and are in Sydney, PM me, I have an open position I'm trying to fill.
Personally, I think any employee who accepts 10-20 hours overtime as par for the course is a fool, unless they are on some astronomical salary. It's not good for you, it's not good for the company, it's not good for your clients to work that many hours.
From the above link
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 his or her 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.
For goodness sake man, 2 hours overtime a week is nothing. I'm in IT, I work extra between 5-10 hours each week without extra pay, not even thank you. And all I got each year is lousy 1% pay rise, if there's no pay freeze.
If you feel your life is unfair, swap with me anytime.
On the side note, the rail, bus and tram unions DEMANDING 6% pay rise each year for 4 years next week.
I feel your pain buddy. I once got told that I'm lucky to even get a CPI increase!
I work in IT as well. How about you swap your IT salary for a nurse's salary in an aged care facility. I don't think you would be whining so much about your overtime and your 1% pay rise.
@try2bhelpful: How about if you just go back to your work and stop reading this forum, your manager is watching you from behind.
@try2bhelpful: Today is a wake up call, if not of your post, I wouldn't find these stats:
http://www.health.nsw.gov.au/nursing/employment/Pages/Public-Hospital-Nurses-(State)-Award.aspx
https://www.glassdoor.com.au/Salary/Metro-Trains-Train-Drive…
Looks like I wouldn't mind afterall swapping my salary with train driver's or a nurse, depending on which grade.
Yeah yeah, most IT guys in ozbargain probably earn $125K - $150K p.a, so yeah you guys no need to whine, and no need to swap. Enjoy your WFH.
@blaccdong: Yeah, the problem is aged care facilities tend to exploit their employees to the hilt. Also, in honesty, would you prefer to work in IT or nursing - I sure has hell know which I prefer :)
@try2bhelpful: And nurse and train drivers can't work from home :)
http://www.news.com.au/finance/work/half-of-australias-worke…
The average IT salary is just under $82k, and the average for a registered Nurse is just over $74k. They are not as different as you think. That said paid overtime in IT is extremely rare.
No doubting the work is easier in IT though, at least broadly.
@Bargs: that average in Sydney? or Tas? Melbourne? nationwide? including the developers in Manila and Mumbai?
More accurate comparison just ask your team mates, if you're underpaid then better find a new job.
@try2bhelpful: TBH, I don't see what you're trying to debate on this.
Did you mean, IT professional deserve extra hours working without pay whilst Age care workers need the compensation for extra hours?How about Doctors? They should follow your logic, huh?
@blaccdong: Just Australia. That would be about average in this office also. From what I know Sydney is about $5-10k more than that as an average, due to the cost of living it's hard to attract people from other cities without it. I've been involved in much of the hiring etc. I know how much people ask for, and ultimately, how much they get (which is universally a lot less). To be anywhere > $125k you've got to be on a short-term contract with a valuable skill (and often that money gets skimmed by an agency), managing 30+ people or just really lucky.
Most of the people I'm working with have 10-15 years experience and still get < $100k.
Probably subtract 10-15% if you're female also because that's still a thing almost universally in Australian jobs.
Starting a new job I wouldn't dream of asking for payment for working overtime because I still wasn't up to speed on how things work etc. I'd expect to probably have to put in a little bit extra just to not look incompetent. Asking for money right away would be a bad look and typically detrimental to long-term prospects, I'll ask for extra money when I know I'm worth it and harder to replace because then it's really hard to say no.
2 hours a WEEK is a pitifully small amount of overtime in any salaried position. If you're working more than 5 hours a week overtime EVERY week and not getting paid > $100k, by all means, speak up. Especially if you're working extra because they're understaffed. If you're working extra because you're slower than someone else they could pay the same salary, you are probably better off not drawing attention to that.
@Apue: I think being a nurse is a difficult job that often involves procedures that are unpleasant. There is also the risk of being injured by the "customer" if the customer is drug or alcohol affected. It is a very stressful job with the real possibility of causing direct harm if you get it wrong. I would take IT anyday, compared to working in nursing.
Doctors are also a stressful profession, however, I would also argue the wages are higher and so is the prestige.
Pay rise? Whats that? :(
@Dadidalol: I got that at my last job, I was there for three years and the only one doing my role. A week before my month of annual leave I told them I wasn't coming back [notice period -check] and came back to a job where I earn 15k more, plus get more benefits. Absolutely no regrets.
And all I got each year is lousy 1% pay rise
Check out Mr Fancypants over here with his 1% rise. Ooh la la.
I can't even recall the last time I got a pay rise, also working in IT. I have to change jobs when I want one. Salaries have frozen over the last few years meaning that my salary SHRINKS every year.
Any paid overtime has to be agreed to by the employer. Otherwise we will all be demanding overtime.
As per CandyMan. Tell her to check what her contract states. At my workplace, any overtime must be approved by the manager/supervisor. However, unapproved overtime can be taken as Time Off In Lieu instead upon negotiation with the manager/supervisor so long as you give sufficient notice of which day you plan on taking off.
@DangerNoodle: in most workplaces all overtime must be Pre-approved or you get nothing.
Places that want to keep their employees will however tend to at least offer some TOIL if the amount of overtime is significant (eg more than 10 hours in a week or more than 5 hours EVERY week.
IT hard you care people your looking after but right to go home on time. it hard.
get her to log her overtime and submit the forms. Keep a copy of the forms. When it is time to change jobs go to fairwork tribunal and you will get your money.
Having said that make sure you try get out on time when possible and document why you couldn't leave on time on the overtime forms.
Blunt but very accurate. Good answer.
Just record the start and finish time on your own diary, when you are ready to quit file a complain at fairwork. The officer from fairwork will follow up for you and then very likely a lump sum of all owings will be paid to you soon after, because no matter what the company will suffer a big penalty. Do that ASAP or once other colleagues have done before you which brought down the enterprise with no money to compensate you.
4Yep just made same comment above before reading this.
This is very true. Keep a log to show how much you worked, why you had to stay back late and evidence that you have requested overtime to be payed. (I.e. have submitted a form).You will get a lump sum.
The bikies joke is worn and stupid.
Bikkies
Are bikes unionised? If not then not then no.
I was expecting this answer.. thanks
Unfortunately there are some here who get stuck well worn jokes
Well broden sold all the good ones, so all we are stuck with is "in before price hijacking and in before amazon sux" oh and bikies of course :(
If she loses her job maybe she could take her payout and invest in a….
… please no. Don't do it, you're a better person than that.
It all depends on what her employment agreement or contract states about overtime.
Some companies and employers have to approve overtime in advance, ie. if it's 4:30pm and your wife doesn't believe she will finish her tasks by 5pm she will need to seek approval to work overtime.The employment contract does not say anything about prior approval of overtime work. In reply to an e mail sent to the CEO she said she is not going to pay overtime as it was not approved by her and there was no incidents requiring the nurse to stay overtime.
I think needing prior approval is a given. You can’t just work it and expect it, otherwise every worker in the world would never go home. I’d just turn up Sunday and work a day.
It only says about the staff needing to be punctual on shift start times. Nothing about over time or seeking permission to overtime
She needs to make the judgement, and I mean this in a non offensive way.
I am competent and no reasonable worker could achieve this, then Go home on the dot and take her breaks.
She is need slow, and it is fair that she should spend extra time to compensate.
If she is actually slow you can’t reward it with overtime as that will annoy fast workers and the boss.
Call the ANF
To go bowling?
That's AMF.
It’s ANMF
NIKO, COUSIN!
Some replies ignore "nurse", "aged care". Though OP doesn't say, wife may feel obliged to care for her clients above and beyond so simply can't work to clock….and no I don't have a solution, just floating the idea employer could be callously taking advantage of caring staff here as OP may have hinted at with "Almost all nurses working there does not finish doing their work by the end of the shift. Is it not exploitation of workers?"
I too feel the same way.
her clients
these people aren't the nurses clients unless they invoice them directly. these clients belongs to the employer.
User name fits. I'm pretty sure most understood my meaning and further that dedicated nurses consider them their "clients" regardless of the money chain.
@whooah1979 The worker has a duty of care to the clients.
Most aged care and disability facilities refer to the people living there as either clients or customers these days.
My wife is a nurse and it happens to her all the time - 15 min here, 20 min there and no extra pay. In month it might add up to $100-$200 of free work she's giving her employer. If there's a patient with needs in her care, it's not like she can just get up and go. That's just part of the job unfortunately.
stop doing overtime then, regardless of finishing her work or not, just go home.
if you want to pursue further, go fairwork and prepare to lose her job.