Can Employers Force Employees to Sign Away Protected Award Rates

t_c on 30/11/2021 - 23:26
Last edited 01/12/2021 - 09:25 by 1 other user

Hi all,

My partner just started a new job and in the collective agreement she has been asked to sign it says this.

Maybe I am reading it wrong. Seems public holidays and OT are all paid basic rate. Is this even legal?

Public Holidays
a) The following days are Public Holidays: New Year's Day, Australia Day, Good
Friday, Easter Saturday, Easter Monday, Anzac Day, Queen's Birthday,
Christmas Day and Boxing Day or any other gazetted Public Holidays.
b) Employees rostered to work on public holidays will be paid at their basic rate of
pay.
c) There is no substitution of public holidays.
d) The employees and the employer intend that this provision excludes the
operation of protected award conditions dealing with public holidays.

Overtime
a) if you are required to work overtime you will be paid at the basic hourly rate of
pay.
b) The employees and the employer intend that this provision excludes the
operatian of protected award conditions dealing with penalty rates, overtime
and shift allowances.
D. Monetary Allowances
a) The employees and the employer intend that the provisions in this agreement
exclude the operation of protected award conditions in the Restaurant,. &c.,
Employees (State) Award dealing with any other monetary allowances and
penalty rates not specifically referred to in this agreement.

Education & Work

Comments

  • avoidfullprice on 30/11/2021 - 23:32
    -2

    Hospitality? Permanent employee?

    Seems legal. https://www.fairwork.gov.au/employment-conditions/public-hol…

    • t_c on 30/11/2021 - 23:36

      Yes hospitality

      • morse on 01/12/2021 - 05:09
        +4

        b) Employees rostered to work on public holidays will be paid at their basic rate of pay.

        This wording is a bit vague. The info above from avoidfullprice refers to not being at work on a public holiday ie if the person is normally rostered on when a public holiday occurs, and they don’t work because it’s a public holiday they get paid the basic rate they would have earned if they were at work.

        The wording you've provided isn’t clear if this is referring to being at work on the public holiday. If they are working on a public holiday it should be clear if they get extra pay or not and at what rate eg 200% https://www.fairwork.gov.au/pay-and-wages/penalty-rates-allo…

        You can create an online account with fair work and look up registered agreements and ask for advice. I think you can also just call the number and ask for advice too.

        If she can it would be good to ask other employees if a)they signed the same agreement and b) what they get paid for public holidays and overtime. And/Or just ask the employer if they get paid a penalty rate on public holidays and what the rate of pay is for overtime.

        • avoidfullprice on 01/12/2021 - 09:31

          Hey thanks for picking that up.

          I went a bit further into the award possibly applicable to OPs other half

          https://www.fairwork.gov.au/employment-conditions/awards/awa…

          Paying basic rate on Public Holiday/OT is below the said award, but I suppose if they sign that employment agreement, it is still legally binding?

          Agree talking the employer early would be a good next step.

  • strongzero on 30/11/2021 - 23:49
    +1

    They probably jack up the average wage per hour (more than the award) that way they can justify no penalty rates.

    I'm not sure about overtime, but it is probably included in that harmonised rate

    • t_c on 30/11/2021 - 23:53
      +1

      It's $20 per hour, Im not sure if thats good or not?

      • raptormesh on 30/11/2021 - 23:55
        +4

        Isn't that below min wage?

        • strongzero on 01/12/2021 - 00:22
          +4

          That's definitely below the award which means it wouldn't satisfy the better off overall test.

          Are they an apprentice by any chance?

        • jv on 01/12/2021 - 00:49
          +5

          Isn't that below min wage?

          Not for a 15 yo….

          • freefall101 on 01/12/2021 - 11:10
            +3

            @jv: OP has been on Ozbargain for a decade, I really hope their partner isn't 15.

      • bobbified on 01/12/2021 - 00:21
        +1

        That's way too low… Is that some internship/apprentice pay or something?

        • strongzero on 01/12/2021 - 00:26
          +2

          Unfortunately, a lot of quick-service restaurants use these bogus apprentice/trainee programs that pay peanuts

  • kanmen on 01/12/2021 - 00:08

    What do you mean by collective agreement? Is there an EBA for her workplace or is this just in her own employment contract?

    • t_c on 01/12/2021 - 00:15

      It says on the first page of the document Employee Collective Agreement

      • Hardlyworkin on 01/12/2021 - 04:49
        +1

        If it is an actual employee collective agreement that is registered with the Fair Work Commission then you should be able to locate it on FWC website. First step is to know what the minimum entitlements are so your partner can know whether it is legal or not. Unless your partner is under 21 or entered into an apprenticeship or traineeship it won't be legal based on $20 an hour.

  • bobbified on 01/12/2021 - 00:18
    +2

    Almost sounds like a slave contract that removes any penalty rates, overtime rates and anything else that increases the hourly rate. It's like one flat rate and nothing else.

    c) There is no substitution of public holidays

    I'm not sure if this makes sense because if a public holiday falls on a weekend, that public holiday is often observed the following Monday. And that Monday is declared as a "Public Holiday" itself.

  • garetz on 01/12/2021 - 00:28

    No-one can force anyone to sign anything.

    Just say no ? then move on.

      • Baysew on 01/12/2021 - 09:27
        +2

        Dan Murphy?

    • morse on 01/12/2021 - 05:12
      +2

      They can’t but it depends how much the person wants/needs a job. Many people feel pressured to agree to poor conditions just to have work.

    • t_c on 01/12/2021 - 10:35

      This new job pays alot more then current job and pays super. So no isn't really a option.

      • macfudd on 01/12/2021 - 21:20

        $20 an hour is a lot more than she's currently getting?

        A company that's using agreements like that doesn't sound like the sort of place that will actually pay super. Oh sure it'll be printed on the payslip but no money will ever actually hit her super account.

      • Quantumcat on 01/12/2021 - 23:38

        Where is she working that she's getting less than $20/hr and no penalty rates??

  • spackbace on 01/12/2021 - 00:33
    +9

    Hospitality for $20/hour with no loading?

    Fk that

  • Slippery Fish on 01/12/2021 - 00:44
    +4

    Can't be worse off then the award, the terms are illegal…

  • happydude on 01/12/2021 - 01:15
    +5

    intend that the provisions in this agreement exclude the operation of protected award conditions in the Restaurant

    Intend to exclude the award?? WTF? You can't just do that because the employee agrees.

    Enterprise Bargaining Agreements must be better than the award and they have to be approved by the Fair Work Commision. You can't just come up with one yourself!

  • CMH on 01/12/2021 - 01:40
    +4

    Sounds to me that an anonymous tip to the Fair Work Ombudsman is in order.

  • Hardlyworkin on 01/12/2021 - 04:55
    +1

    The circumstances of your post appear at face value to be unlawful however more details are needed to be sure such as age of your partner and whether is part of an apprenticeship or traineeship. Also to confirm whether business does have a registered workplace agreement (enterprise or collective agreement that will apply to your partner).

  • El cheepo on 01/12/2021 - 06:13
    +1

    Under an agreement (Eba or collective) generally they can ask you to sign away all your extra pay entitlements (overtime penalty rates) but can’t go below the minimum award rates.

  • pegaxs on 01/12/2021 - 06:43
    +1

    Lol @ “required” and “overtime” being in the same sentence. No, overtime is at my discretion, not the employers, especially if there is no extra loading.

  • Lichen6420 on 01/12/2021 - 07:05
    +3

    Any agreement must pass the "better off overall test (BOOT)" test to be considered legal.

    https://www.fwc.gov.au/enterprise-agreements-benchbook/commi…

    https://www.fwc.gov.au/enterprise-agreements-benchbook/makin…

  • JMosk on 01/12/2021 - 07:38
    +3

    Been in these shoes before. If you get in touch with fair work they will provide you guidance.
    From memory you cannot be paid less than the award under any circumstances

  • DemocracyManifest on 01/12/2021 - 07:41
    +5

    That’s bullshit. And they wonder why people won’t work for them when they want to pay you peanuts. Bet they won’t pay super either, and earnings amazingly won’t be reported to the ATO

  • brendanm on 01/12/2021 - 07:54
    +1

    She should not work for someone so obviously dodgy.

  • bobbified on 01/12/2021 - 09:36

    Why would you ask your employee to sign such a thing? 😋

    Is this the same person?

    • t_c on 01/12/2021 - 10:15

      No, different person, that person is no longer in Australia and that was back in 2015

  • abb on 01/12/2021 - 09:37

    b) The employees and the employer intend that this provision excludes the
    operatian of protected award conditions dealing with penalty rates, overtime
    and shift allowances.

  • AndyC1 on 01/12/2021 - 12:21

    I would find another place to work as this place sound like they will screw you any chance they get.

  • Cheapskate Paul on 02/12/2021 - 13:33

    You would not usually be required to "sign" a collective agreement as the agreement would specify which employees are covered. If it's an individual agreement, that would need signing.

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