Have I [legally] been underpaid?

CheeseBeans on 05/01/2022 - 11:42
Last edited 05/01/2022 - 17:46

For "administrative reasons" our workplace has shifted the working week from Friday to Thursday, rather than Monday to Friday. Pay day remains the same at Monday.

To facilitate this change, everyone was paid for a 32 hour (rather than a standard 40 hour week) week, despite everyone having worked full time or having taken full leave. Subsequently, it will return to "normal", with everyone being paid a 40 hour week into the future. I checked and there are no plans to reimburse the missed day, offer it as leave, time in lieu, etc., so I'm having a difficult time reconciling how everyone hasn't just been underpaid 8 hours.

The only way this will be repaid is on resignation/dismissal, assuming this shortened week is recalled in this scenario (unlikely).

Also yes, this seems petty, and it might be, but I believe in things being done fairly. The missed income isn't a big deal to me financially, but I know there's people here that it could be important to, so if I'm legally in the right to get this fixed I'd like to.

Edit: from the research/advice received the answer to this is somewhere between "maybe" and "maybe not", but it seems like doing this unilaterally, especially without any prior notification sits more in the "almost certainly illegal" camp. It seems like the expectation for this kind of change is written consent or a genuine consultation process, with prior notification with sufficient notice being the absolute bare minimum requirement.

Education & Work

Comments

  • xuqi on 05/01/2022 - 11:47
    +1

    "I checked and there are no plans to reimburse the missed day, offer it as leave, time in lieu, etc."

    Do you have this in writing / email? If not, put the question to your management/HR via email.

    https://www.fairwork.gov.au/workplace-problems/common-workpl…
    https://www.fairwork.gov.au/workplace-problems/fixing-a-work…

    WA
    https://www.commerce.wa.gov.au/labour-relations/getting-help….
    https://forms.commerce.wa.gov.au/content/anonymous-reporting

    • CheeseBeans on 05/01/2022 - 11:55

      Good point. Will do

    • HeWhoKnows on 06/01/2022 - 12:05

      Its a bit unclear if OP is working and being paid for 4 days or 5 days

      If OP is working 5 days and being paid for 4 days then its illegal

      Time or days in.lieu is only acceptable when a worker works in excess of their "standard" hours
      eg Working additionally on a Saturday when usually that person works Mon-Fri
      There must be some formal agreement in writing of how and when those worked hours will be repaid either in time or money

      IF OP was asked to sign a new contract effectively reducing OP's pay then its perfectly legal

      If OP is pay is by salary then its a different ball game because it a fixed amount per year
      But this means the employer cannot just reduce a persons pay without that employees agreement.
      Even then if people are asked to work extra days its optional and that time is usually given in lieu and taken shortly afterwards such as the next Monday if working on a Saturday

  • mskeggs on 05/01/2022 - 11:51

    Are you paid in advance, or arrears? I've worked in places where the fortnightly pay covers one week in advance, and one week in arrears.

    • CheeseBeans on 05/01/2022 - 11:54
      +1

      We are paid in arrears.

      So effectively instead of being between 0 days behind and 1 week behind on pay, it will perpetually be at least 1 day behind.

      I guess another way you could look at it is the company has effectively taken a small loan from every employee without notification or consent, with no interest, to only be repaid upon dismissal or resignation (maybe).

      If we were paid in advance I would definitely not have an argument.

      • mskeggs on 05/01/2022 - 12:03
        +1

        That sounds rough.
        Presumably your payslip shows the correct dates?
        I guess the payroll department answer will be when you leave, your final payslip will reflect the actual days worked.

        • CheeseBeans on 05/01/2022 - 12:17
          +2

          Yeah, and that's pretty much the answer I anticipate from them.

          Wherever the legality sits I don't think doing things like this is completely right. They know there's people here who'll finish the week with less than a few hundred dollars in their account.

      • Slippery Fish on 12/01/2022 - 22:17
        +1

        Maybe I read it wrong but if they shift from Friday week finish to Thursday they paid 4 days to Thursday then the next pay run starts friday-thursday. You are owed nothing as it just went into next pay???

  • Boioioioi on 05/01/2022 - 11:52
    +2

    Doesn't sound very legal to me. I'd report it to the ombudsman in your area.

  • Andremelb on 05/01/2022 - 12:07
    +2

    I would guess they have had trouble managing to process the data in time to make payroll runs on the Monday. Their solution is to close a day earlier on Thursday to give extra processing time.

    Have they had any late payments or incorrect payments recently? Something like this may trigger such a decision.

    Poor form to not communicate this well, payroll rule number one should be not to mess with people's pay. You haven't lost a day, it is being paid a week later. Instead of each Friday being paid 3 days later on the Monday, it is being paid a week and 3 days later the following Monday. Perhaps there is an agreement or award you could check this against?

    • CheeseBeans on 05/01/2022 - 12:14

      Yeah, it's to buy processing time, but generally there's been no issues with pays previously.

      Yes, I understand it's "being paid a week later" (I'm sure they'll make the same argument), but functionally, no one will be paid this amount until they leave. The second part of my concern is that with the poor communication and record keeping typical of this workplace is that that day will be absorbed and disappear when people actually do leave.

      If the pay day was being shifted forwards a day also I think they would have a stronger argument (as you could make an argument provided that the outstanding day is repaid eventually, the time-cost-of-money works out to be the same, even though the difference is minor).

      • Andremelb on 05/01/2022 - 12:28

        "Generally there's been no issues" is normally not good enough for payroll. Mistakes with people's pay greatly diminish trust in the company and over payments (having to ask for cash back) or missed payment timelines can be disastrous for individuals - think missed mortgage payments, bouncing cheques, unable to pay for groceries etc.

        From the employees perspective cash wise, I agree that you're a day down until you leave. But it's not the same Friday - that is rolling forward each pay cycle. It's not the first Friday that you need to check if you leave, it's the last Friday. Any half decent payroll system should be showing the dates that you're being paid for too.

        • CheeseBeans on 05/01/2022 - 12:37

          Yeah, I checked and they haven't correctly amended the dates to reflect this change (the same dated pay period is still being shown), so that's something I'll need to get fixed at the least.

          • Andremelb on 05/01/2022 - 12:42
            +1

            @CheeseBeans: This is the bit that would interest me - changing a pay cycle is not a normal procedure and might require some specialised knowledge. It's entirely possible they've underestimated how difficult this could actually be to implement.

      • Settero on 05/01/2022 - 12:31

        I think you are just looking at this from a simple stance , it's just a payroll date system, when you quit you can have your last day any day of the week , last paycheck are more often than not adjusted for multiple factors, paying out leave , paying partial pay periods , paying overtime and penalty rates.

        If you think your workplace will make a error when you leave then just make sure you check your last payslip , you should be doing that regardless.

      • trex on 05/01/2022 - 13:20
        +1

        Yes, I understand it's "being paid a week later" (I'm sure they'll make the same argument), but functionally, no one will be paid this amount until they leave

        Could you give specific dates? 32 hours in the first pay could be cut over where the previous Friday was already paid?
        As an example:-

        Before change :
        Week 3/1/2022 to 7/1/2022 (Monday to Friday) : 40 work hours, pay date 10/1/2022 (Monday)

        Working week changed during week of 10/1/2022 to 14/1/2022

        After change :
        Week 7/1/2022 to 13/1/2022 (Friday to Thursday) : 32 work hours (7/1/2022 already paid in the previous cycle), pay date 17/1/2022 (Monday)
        Week 14/1/2022 to 20/1/2022 (Friday to Thursday) : 40 work hours, pay date 24/1/2022 (Monday)

        Where 21/1/2022 will be paid a week later in the following pay date of 31/1/2022 (Monday).

  • Settero on 05/01/2022 - 12:21
    +1

    Sounds legal to me ? Unless I'm missing something.

    Pay slip 1 would show pay days as m-thursday so 4 days , payslip 2 and forward would cover Friday - Thursday.

    My works "pay" week is Friday- Thursday

    • CheeseBeans on 05/01/2022 - 12:29
      +1

      My only issue is to do this they've perpetually accrued a day in arrears without informing anyone.

    • CheeseBeans on 05/01/2022 - 12:32

      Oooh, interesting- what you said should have been the case, but the pay period dates haven't actually been reflected to update this change.

  • Autonomic on 05/01/2022 - 12:22
    +2

    Work Monday to Friday, paid $1000.

    Work Monday to Thursday, paid $800,

    Work Friday to Thursday, paid $1000.

    Am I getting this right? Normally you'd work Monday WK1 to Friday WK3 (15 days) and get paid $3000. Now your pay period ends on a Thursday so you're working from Monday WK1 to Thursday WK3 and getting paid $2800.

    • CheeseBeans on 05/01/2022 - 12:27
      +1

      Yep, though pay dates remain the same.

      However if you put it in a black box with inputs (work/hours) and outputs (income) you get:

      40 hours = $1000
      40 hours = $800
      40 hours = $1000

      I do see your argument, because that's exactly what I expect HR/payroll to come back with. They may be in the right legally (I'd hope not, but it's possible), just trying to figure out exactly what is acceptable. Why not continue rolling it forward (changing the pay week)? This won't happen, but where is the line between "OK" and "not OK" (hypothetical question kind of- having a hard time finding an actual answer)

      • Settero on 05/01/2022 - 12:32
        +2

        It would actually be

        40 hours 1000
        32 hours 800
        40 hours 1000
        8 hours 200

        You would be paid for an extra pay run

        • CheeseBeans on 05/01/2022 - 12:41

          With an *; only on dismissal.

          I guess the question is, is accruing additional days in arrears for pay fine (it may be- I'm not sure, and having trouble determining it for sure) without notification or agreement? It definitely wouldn't be accepted the other way- if I was to not show up for a day without saying a thing, and if questioned just responding "well, that day is actually still there, you'll see it when I'm dismissed or I retire"

          • Settero on 05/01/2022 - 13:05

            @CheeseBeans: so what are you trying to get out of this ? the answer to your original question of if you are being underpaid is , no.

            is it legal to pay like this , yes.

            is it legal to change your pay cycle without notice , no clue ( its pretty shitty tbh) , ask a lawyer if its really a major issue for you , but logically i don't see you being able to reject this change.

            • CheeseBeans on 05/01/2022 - 13:32

              @Settero: Appreciate the feedback.

              In their defence, I can see why they would want to change the schedule, but I don't think this was the best way to do it. As it was over Christmas I think there was plenty of opportunities to adjust this with leave, time in lieu, etc.

              I would definitely be a lot less irritated if I was told in advance and didn't have to play detective about a changed pay packet.

    • Chandler on 05/01/2022 - 13:06

      Yeah I'm with you, sounds fine to me.

      They adjusted the pay period from Monday-Friday to Friday-Thursday, so the week of the change they did Monday-Thursday instead. Being one day short that pay period means you get one days less pay, because the Friday of that transition week is paid in the following pay period.

      Assuming I'm understanding that correctly, no issue.

      If you so happen to finish working there on a Friday, they should be paying you that one day's pay on the Monday after the following Monday (+10 days) - i.e. you get two pays after you finish - the first Monday after for the period finishing on your final Thursday, and the second pay the Monday a week later for your final Friday.

  • Drakesy on 05/01/2022 - 12:25

    Sounds like they've gypped you a days pay.

    Accounts and HR sometimes aren't the brightest bunch

    Although when you leave you'd probably get the pay the following week. (so it's just pushed out the pay for one shift into the pay week after your last week there.

  • Chandler on 05/01/2022 - 13:09

    One thing everyone's missing here is the legality of a 40-hour week. Yes, I know a lot of workplaces still use it, but it's not really right anymore… (in my understanding)

    https://www.fairwork.gov.au/tools-and-resources/fact-sheets/…

    • CheeseBeans on 05/01/2022 - 13:34

      Wtf how did I miss this? Yeah, this is probably worth looking at

      • Chandler on 05/01/2022 - 13:39

        Depends on how much you like working where you are.

        I know my previous workplace did not respect the 38-hour work week, but as I liked working there and had some flexibility I didn't feel it was worth fighting that battle.

        • CheeseBeans on 05/01/2022 - 13:41

          I honestly find it really interesting- 40 hour work weeks are so pervasive and common I had no clue the guideline was 38.

          • Chandler on 05/01/2022 - 15:13
            +1

            @CheeseBeans: The only caveat with the guidelines is that more than 38-hours of work is legal, as long as it is "reasonable". And the definition of "reasonable" is pretty loose and basically allows employers to manipulate their staff who may feel obliged or coerced into doing more work than they are being paid for. Because who's going to say to their boss "Nah, I'm not going to stay back to complete those TPS reports". Unless of course, you want a promotion…

            I know my previous employer's contract said that I was employed for 38-hours but could not expect to be paid for any "reasonable" overtime of up to 5-hours in a week. Personally I don't call 2-hours a week unpaid every week "reasonable". For a short period or a specific project, sure. But not every week.

  • grog on 05/01/2022 - 13:11
    +2

    Your union will be able to advise you on this matter

  • freefall101 on 05/01/2022 - 16:49

    What's in your contract? It will often specify when you're paid, if they changed it without a contract change I'd have words with them.

    Basically they're paying you a day in arrears. Is the business doing ok? The only reason I could see to do what they've done is cashflow, paying everyone a day in arrears frees up 20% of payroll cash for an extra week. Depending on the company size that could be a massive amount.

    Paying full time staff is a piece of cake. They could have just set a cutoff day for leave requests and such and any changes go into the following pay run instead. That would give them more time without changing the amount paid.

    • CheeseBeans on 05/01/2022 - 17:50
      +1

      Yep, from further research it looks like doing this without any prior consent, consultation or at the very least prior notification is a no-no, as it's effectively a non negotiated unilateral contract change. The other part about an extra day in arrears constantly, not entirely sure about

      Our business is doing fine financially, but you're on the right track, they're big on cashflow (even if it's not a big problem). We're that business who chases up 30 day accounts owing after a week, but tries to drag our 30 day payments due out to two months :)

  • AdosHouse on 05/01/2022 - 20:28

    Okay all the pay thing aside, why TF thinks a Friday-Thursday pay-week is a good idea?

  • OzHunterNSW on 06/01/2022 - 14:32

    I know it sounds confusing and it is a SCAM that only rectifies itself at end of contract. So essentially the company has scooped a boon of thousands by deducting a days wage from everyone. BUT must reimburse the lost day at the end of contract - i.e days worked after this fictitious "Thursday".

    • CheeseBeans on 07/01/2022 - 11:32

      By my rough calculations they've put themselves about $24,000-26,000 ahead by doing this :)

  • Geoff01 on 06/01/2022 - 18:20

    It pretty much makes sense as some other wise ops have said. You get paid 1 week arrears, 1 week advance. So you get 40hrs for the arrears and 32 for the advance as Thursday is the new end of payroll week. Then the next will be 40 + 40. If you leave on a Friday you will get an extra day's pay as it's 1 day into the new period. Sounds like it's wrong but it's not. It's just an amendment to the pay period. On reflection the company is having a windfall over this period by having the change.

    • CheeseBeans on 07/01/2022 - 11:32
      +1

      We are paid in arrears only. If we were paid in advance, I wouldn't have much of an argument.

      Changing it without notification was definitely not OK legally from what I can figure out.

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