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
It is a not for profit organisation. They are paying RNs award wages, which is uncommon. Mostly RNs get paid 3 to 4 dollars above the award wage. What I feel is they are trying to maximise their profit to fund for an expansion which is currently undergoing.
I know not for profit quite well. Margins are thin and setting a precedence for staff to claim overtime can quickly kill the organisation. What is paid to staff has to come from somewhere and if the funding source does not provide that extra bit,(most certainly they do not) organisation has to pocket it out from their saving. You may think they are big, but look at the annual report to see the surplus they report. Most of the time it is a small amount compared to the staff and if they don't get funds for few months they will not be able to pay staff.
Shouldn't the first questions that your partner should be asking herself be:
- How much do I need the job (e.g. for the money, to make finding another job easier - it's usually easier to find a job when you've a job)?
- How much do they need me (e.g. supply & demand of RNs in the area)?
- How easy would it be for me to find another job if I get sacked?Since overtime has to be requested by management and she has not been asked to stay back, they probably don't have any obligation to pay her for those extra hours.
In any event, it's not usual for someone new to the job to be working a little slower/ less efficient than a seasoned employee. As an employee, I personally wouldn't mind too much about putting a few extra hours initially because I'm less efficient. However, as a supervisor, I also don't expect a new employee to be able to perform 100% either.
They are understaffed. Even though on their website it is mentioned that RNs are available 24/7 they don't have any RNs doing night shifts and sometimes even during the day shifts. However the CEO is not flexible regarding the pay or looking to employ more nurses or carers. To me it is exploitation.
Again, ask yourself those 3 questions and your answers should tell you whether you're in a position to fight
She is on probation so does she want to risk her employment for 2 hours of overtime? Her employer can get rid of her at the end of the probation period without a reason. She just need to ask herself if it's worth it.
After she is employed as a full time/part time, just get her to join the union. The union usually resolves issues like this rather quickly. Especially if her colleagues got ripped off as well.
A few thoughts.
She does need to seek advice from the ANMF (her union) - they don't need to go into bat for her if she feels too nervous, they can just give her advice on how justified the CEO is by looking at staffing ratios etc. This should be her first port of call.
You can make an anonymous complaint to the Aged Care Complaints Commissioner about misleading advertising if they are saying they have a 24 hour RN when they do not. They will investigate and the place will remain on their radar. As an anonymous complaint, you wont be contacted with the outcome. The provider will try their hardest to find out who made it but the Commissioner is very strict about non-disclosure of any kind. https://www.agedcarecomplaints.gov.au/
It may be more wise to suck it up until the probationary period is over, and then go in hard with the ANMF and Fair Work. The not for profit sector is still pretty damn for-profit with their practices. In the interim, I would be sitting down with the CEO and asking them in what circumstances is it appropriate to pay overtime.
I highly doubt she'll get fired over this, getting trained staff in rural areas is bloody hard, and I'm surprised they're only paying the award for this reason.
It is the oldest trick in the book in this industry to blame overtime claims on 'lack of efficiency' when what is actually happening is good patient care. There are few incentives to look after people and it's much easier to cut corners because it's openly encouraged. Your wife sounds like she's doing a great job. My Mum is a retired aged care nurse who left the nursing home system to go back into public hospital work because it is that hard for RN's in that setting. Tell her to hang in there.
You are awesome..I really appreciate your inputs
Very very happy to help, RN's in aged care do it really tough.
Tell her to take her breaks, and leave work on time as long as it doesn't compromise anyone's safety. Also keep a diary of every time she works overtime and the reasons why. Will come in handy later.
I sure will..
She can complain and it will end up with her wanting to resign. The boss can make life hard for her. This isn't right but this is real life.
You can't have high minimum wages, workers rights, heavily subsidised education and healthcare, welfare, good infrastructure and competitive free markets in coexistence.
You can't have your cake and eat it too.
In this case, you can't have your job at the pay you the government dictates you deserve, and the hours you wish to work. The law says you're entitled to it. Reality says otherwise.
Again, I'm against worker exploitation, just like I am against crime. Doesn't change the fact that it happens.
TLDR - you can fight it through ombudsmen and legal aid but you won't get anywhere.
First step I'd take is, ask her to apply to other jobs while in her probationary period.
Trust me, no matter if they pay her OT or she becomes permanent after her probationary period, there is nothing more negative in life than working in a bad workplace environment.
TL;DR, continue working until she finds a new job. It's just not worth it.
Put up with the bullshit for the first 3 months, then start going home when your shift is over
Paid overtime must be pre-approved by management. This is all employers everywhere. Your wife is in the wrong in this instance and the employer is justified in rejecting the claim.
You can't just give yourself extra pay when you feel like it LOL.
That's not true, it is very employer dependent especially in the health system, especially as patients are exceptionally unpredictable.
When a nurse works two hours over time, they are not just giving themselves extra pay when they feel like it 'lol'. Please develop some awareness of the fact that you know little about the health system and the battles nurses in particular face.
Is she allowed to leave early if she finishes ahead of time? If it doesn't work both ways, it's time to look for a new job.
If she starts by letting them walk all over her rights, it will continue the same way.As a general rule no, nurses can't leave early if they get everything done early, it's unheard of.
Hi Bevan2008.
As a nurse myself,i can genuinely sympathise with your wife in regard to this issue.Overtime has not been paid for extra hours worked by us for an awful long time….you are either expected to "suck it up" as part of the job OR take "time in lieu" as "payment" (the chances of ever getting it though are remote to "yeah,right").Aged care is especially notorious for this,as it is terribly understaffed (1 RN for an entire unit….which can run into 30 or 40 in number of residents,with many needing extremely time consuming and heavy assistance,and 1 or 2 AINS to do the manual work…RNs usually do meds and woundcare,as AINs are not usually allowed to do such tasks).Such a workload is impossible to complete for even the most experienced of nurses in just one shift (whether that be 8,10 or 12 hours….what needs to be done depends on time of day and what acuity of care the patients are),and if you DO manage,it is because you have cut some serious corners (so please don't expect your wife to "get quicker"….nurses are pretty damn great,but we have not evolved enough yet to perform miracles in seconds,despite what employers may want,and as you said,we aren't doing some job where money or possessions are our responsibility….LIVES ARE).
As for breaks,yep,it is hard to get them,(God,we can for 10 hours and not pee) BUT for your mental health,it is essential to take some form of "time out" (if your wife is only new to nursing,she will learn that quick enough…if she is not,she should know this and make it a "task" she needs to perform daily)
The nursing profession,and health system at large, is not very compassionate towards it's staff (so HR,CEO,DON will not care less if you make a complaint….and in fact, may well make her life a waking nightmare if she does) and the union is,truthfully,urine weak at helping you,so to be honest,at times you just have to say a firm "NO" to going the extra mile all the time,and take care of yourself (because if you don't,you will burn out quickly and risk either hurting yourself….in aged care,physical injury is rife) or a resident (being tired or mentally drained causes lapses in judgement that are hard to ignore),so if your wife is,as you said,looking for something else,do the odd OT, but make it just that….only sometimes.
Lastly,be supportive as much as you can,and try to understand what she has to do all day…it 'aint easy,and in fact,she is in one of the hardest areas of nursing you can be in.Tell her "take care" from a comrade.Thank you so much for your kind words. I know nursing is a great profession and only a special person can be one. I admire the work she does and am contemplating to become a nurse myself.
What does the contract say?
You will probably need to contact the union. I think its ANF - Australian nurses Federation for WA. Private nursing homes have a bad reputation when it comes to paying the staff. There is always errors in pay and it is pains to go through all of that as it has to go through the management again. I am a registered nurse by profession and I hardly do overtime. The overtime pay directly depends on the year you are in and it's not worth doing it any more than two additional shifts
The comments saying "they can't fire her without due process" and similar comments make me wonder whether I'm the one that has been surrounded by douchebag management my whole life or that they are the ones not living in the real world.
There are a lot of things employers "can't" do but still do and get away with it.
bosses that do this make my blood boil. filth.
Could it be she's a bit slow because she doesn't know the work yet? If the other person she replaced did the same tasks in same time then the employer could argue she's not fit for the job. If you complain and pick issues now they might see her as a troublemaker and fire her before the probation ends.
If I was you I would work as hard as I can. 15 mins before the end of the shift go to the supervisor and advise them that there is X amount of work left. Ask them if they want me to stay back and finish it or go home. If they say go home then it's all good. If they say stay back and finish it then just write the finishing time on your timesheet.
If you stay back without being asked to stay back I don't know how this situation is handled as I have never come across it. My first job I was a bit slow and they reduced my hours and gave someone else over time. I was eventually moved to the phone as I was horribly slow at typing.
Same for junior doctors.
We are actively discouraged to seek payment for unrostered overtime even though our award says we are entitled to it.
While overtime culture differs from unit to unit, having to go to your head of unit to sign off unrostered overtime makes you look incompetent, that you can't do the work that other doctors are doing in the time frame alloted - when the truth is that every other junior doctor is also pulling extra hours and not getting paid for them.
Reputation is the most valuable currency in medicine, and if you are known for seeking overtime you will be looked upon poorly by the consultants and passed over for research opportunities, given poor reviews for your rotation, and possibly not be re-employed the next year. Poor reputation for overtime can also affect a doctor's ability to enter a specialty training pathway
Ultimately junior doctors will spend an extra hour or more at the end of the day doing unpaid overtime writing paperwork once they have handed over clinical care of their patients to the next shift. It's not something we can opt out of - If we don't write our discharge summaries properly, patient care suffers -, and it's not something we can complain about because the senior doctors all say "back in my day we worked 80 hour weeks, you young docs don't know how good you have it"
Same kind of situation with sick leave. Medical workforce is meant to be able to find cover if you're sick, but will often require advance notice. No one plans on being sick. If you're sick you're still expected to show up because otherwise your 25 ward patients will become your poor colleague's 25 patients, and they'll have 50 patients to look after on their own. Is it safer for patients in hospital to be taken care of by an infectious doctor or is it safer for them to be cared for by one who has 49 other patients on their mind? Who knows.
These things happen in every hospital in every state across the country. We're in a situation where our state awards and employment contracts literally provide for adequate compensation for overtime, mandatory lunch breaks, sick leave etc but no one will take them because no one wants to rock the boat.
The AMA is the closest thing we have to a union and despite all their words not much has changed for junior doctors in public hospitals.
I'm not sure what state you're in or hospital, but I think AMA/ASMOF has made huge movement with regards to protecting junior doctors. If you are in an environment that is still maintaining the culture of not paying overtime with consultants hanging onto their 'back in my day' rhetoric, then the AMA and ASMOF do want to know about it. If you're sick, you call in sick and let the hospital deal with it. They will manage without an RMO for the day.
If you're talking about specific training programs as a junior doctor, well that's a different story and regardless, I don't think this thread should be used to launch discussion about this issue anyway as nurses face very different challenges and discrimination in their role.
This is a terrible way approach a new job; complaining to the CEO about such a minor issue during probation.
That is a small aged care and she directly reports to CEO. There are no managers in between
Be honest - are you really saying your wife doesn't spend 2 hours a week (i.e. around 25 mins per day) just standing around and doing nothing, having a cup of coffee or talking to her colleagues?
Either way, if this was about 10 hours of overtime, then I can understand the issue, but 2 hours of overtime per week is probably on the better side of normal. If 2 hours of overtime is an issue, maybe there are other underlying issues (e.g. she doesn't like her job, or there are problems with the employer).
Also, your question of whether the employer must pay for overtime work is a bad question. If the answer was yes, I could stay at work 24/7 and force them to pay me "overtime" - of course not, it has to be negotiated in advance.
Have you ever worked with any nurses? Especially in the aged care sector? They do not stop, it is brutal. They sit down for about half an hour to an hour of their shift to write their patient notes. For a nursing home RN, they have to give medication to anywhere up to 50 patients. Not just one medication, often 10 to 15. Each of these medications need to be safety checked. Then they have to ensure the patient takes them. The patient often has dementia. After that they need to go and do all the wound dressings. This can be slow as very painful for the patient. They need to see any of the sick patients and get on the phone to their GPs/hospitals. They need to assist with showering/dressing/mobilising all of those 50 people. In a public hospital, the staff ratios are 1:4 or 1:8 depending on what you're doing. In a nursing home it's up to 1:50. There is no standing around and doing nothing!
Fair enough, that sounds like grueling work. If my prior post sounds uninformed or harsh, I do apologise. However, I guess the point I'm trying to make is that there's always some room to give or take here or there.
I understand what it's like to work in a job where you do important work, but may be unappreciated - I'm a teacher. There are also times where the workload is heavy and I have assignments and exams to mark. Obviously, I hate staying at work until 9PM marking, but every time I think about how much I enjoy being in the classroom, how lucky I am compared to so many others, and how I spend many hours of my working days having a coffee or browsing Facebook in the staff room, I do feel better.
Maybe I'm still young and have few commitments outside work, so for me, staying at work till 6PM and 8PM is the same thing (maybe even better as I avoid the darn traffic), but perhaps once I have a family and it's the difference between seeing my kids and not, I'll understand a bit better!
It's not just the hours with nurses though, it's the fact that it's physically gruelling too. They rarely sit down and there's a hell of a lot of manual handling (getting people out of bed/into a chair/into the shower/showering and toileting them) which can be extremely unsafe when your patients have had a stroke and are paralysed, have dementia and are impulsive and can't follow commands and are extremely unsteady. It's not safe for them or their patients to be doing those sorts of hours with that sort of physical load spread over that period of time. The problem is worse in nursing homes because there's no one to relieve them - in the hospital system, another nurse can relieve them for a bit if it's getting too much (and the breaks are much more heavily enforced), but in the nursing home system, they've only often employed one RN (the rest are personal care assistants so a few months of training at best) so they just have to do it all and there's no one to give them a break.
Apologies if I sounded grumpy, it's something close to my heart, my Mum has had several injuries from her career which she's stuck with and nothing much has changed it sounds like.
@MissG: Nope,it has not changed one bit.
I have had colleagues had injuries from working in this field that have had them never work again…in anything (a 140 something kg pt.fall on them due to poor staffing,employer expectation and archaic equipment ),worked such long hrs ( tired and then be expected to front up again the next morning) that they have had a car smash,and most horrifically,sustained injuries from work (as a casual) that saw their shifts cut to next to nothing….no pay coming in,no "how can we help you get fit for work again" and financial hardship.That ended with the suicide of that particular workmate.You only understand when you either work in the area OR have someone close to you working in it (sure as hell no "many hours" of those working days "having a coffee or browsing Facebook in the staff room",to feel better.As i mentioned,basic human needs such as peeing and having a drink of water are "negotiable".
Just something out of topic, the number of the topic on the address bar is 355666, such a nice number. Hope your wife's job is getting better and secured. In this down trend economy we are all suffered.
I don't get paid overtime or normal rate for any extra time at work. And rarely do I get time in lieu.
Unless essential they ask you to stay back for another shift or for a few hours extra, no chance of getting paid overtime.
I have worked as an RN for a while now, almost 13 years.
Tough one. I'm in a job that, if you work a overtime now and then, you get rewarded in other ways, such as, bonus, free lunches, a salary increase for going beyond what is required.
Overtime - ha. I'd be a millionaire on my PAYG 37.5 hour per week white color software job if they paid that.
Try working from home from 8am through 1 or 2am the following day for months on end. I regularly hit 37.5 hours in just 2 days.I wouldn't trade it for geriatric nursing though!
Are you really working though? Or just replying to emails that come through?
writing software / meeting with folks in other geographic regions and timezones / reading ozbargain to procrastinate.
From a compliance standpoint,
she can only get OT pay if she is ASKED to stay back past her standard shift. if she is staying back due to unforeseen circumstances that she took the initiative to resolve, good on her, but she wont qualify for OT.
OT is always employer initiated, and employee agreed. never employee initiated, employer ratified.
when she shift ends. she should be handing over things in the last half hour of her shift to at most the next 15 mins of her shift. anything beyond that is a HR rostering issue or a performance issue if she cannot get her work done.
Can depend on industry. I work in a bank and unpaid overtime is the norm. Took the job knowing it.
That is basically nursing for you and I guess other medical professions.
Aren't TOIL systems more standard for such industries? For example, work an extra 30 minutes one day then go home early another day where there's not much to do.
Does your wife work for Juniper?
I can't reveal it, sorry..
Ask them to put it in writing then take it to the union.
Nurses are in high demand. Find another job
Not all bosses are flexible.
I would just take compensation off
2 hrs overtime - 4 hrs off :)
Stop doing over time if you're not salaried.
just go postal
Keep a log of all the hours (worked and unpaid o/t).
Ask for back pay once you quit.
That way the boss can't fire you.. and if you take it to tribunal you have thorough logs as evidence.
Is it an aged care or aged support/not for profit? If it is 2nd one, then probably they cannot afford to pay overtime.