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kamerong

Employment Legalities

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Hey folks,

 

Recently I started a new job as a barista at a cafe. Now, I'm only planning on being here until January 2013, as I've booked a trip to Bali for new years and after that I am moving to Canberra to go to university, so really this job is only going to be for a few months to save up money for Bali. Due to this, I've been a bit reluctant to complain or cause too much of a fuss regarding some certain issues that I've noticed regarding pay and work conditions. This is my fourth job, and I've never worked at a place that does any of these things before and I'm certain that some of them are at least borderline illegal, so I'd appreciate if anyone with some sort of a legal background could give me the rundown on these:

 

-Major issue is pay, I'm working for almost minimum wage (just under about $17/hour) so it's hard enough to motivate myself to work as hard as I do. But when I check my time sheets each week, I'll often see something like "Actual hours worked: 42.45" and then in the next column "Hours paid: 39.15". I'll consistently see times where I'm meant to start at 5:00, but I'll clock in at 5:01 or 5:02 so the "Pay start" time for that day will be at 5:15. Not only this, but when I'm doing late night closes, for which the rostered finish time is 11:30pm, I'll often not get out until about 12:45am or even 1:00am, just because the place is so god damn busy until that time and most of the experienced closers have quit, leaving me and other new people to learn as we go. Again, when checking my time sheets for these closes, I'll only be paid until 11:30pm, even though I've worked an extra hour beyond that. Supposedly this is because the rostered finish time is 11:30pm and we've worked too slow.

 

-Pay is often withheld on the basis of "We saw you checking your phone on the cameras" or "You forgot your apron that shift so we had to charge you". This has never happened to me personally, but I've only been there a month, and have heard stories from a lot of the staff detailing this practice. Certainly this is illegal, right?

 

-No penalty rates whatsoever, not even on public holidays. Apparently this is subsidised by our employer paying us at higher rates, however I'm only earning about 10c an hour above minimum wage for a 21 year old. I'm pretty sure this isn't illegal, but just wanted to make sure.

 

-We're expected to attend unpaid meetings, the justification for which is that we receive 'generous employee discounts'. I don't know whether or not this is bullshit either.

 

-Our contract states that upon leaving this job, we're not allowed to work at a rival cafe or subway within 6km (This particular cafe also has a video store and subway attached).

 

Honestly, the place is giving me the shits something bad, and I'd give my two weeks notice right now if it weren't for the fact that it was only for a few months and I'll probably be back working at a casino (thank god) early next year. But I'd really appreciate it if anyone with more legal knowledge than myself regarding this sort of stuff could give me an idea of whether or not this is total bullshit.

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The hours you have worked and what you are getting paid for sounds correct.

 

You would have an agreed upon hours of work. And sounds like you are being paid as a casual?

If there is no agreed overtime pay then you won't get paid for working over your time...

 

personally I'd be walking out of the shop at the time my shift is to end if they weren't paying me for overtime.

 

It also sounds like they calculate your hours worked in 15min blocks rounded up to the nearest 15min.

 

 

What does the contract you signed say about unpaid meetings?

Edited by PointZeroOne

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The hours you have worked and what you are getting paid for sounds correct.

 

You would have an agreed upon hours of work. And sounds like you are being paid as a casual?

 

If there is no agreed overtime pay then you won't get paid for working over your time...

 

It also sounds like they calculate your hours worked in 15min blocks rounded up to the nearest 15min.

 

 

What does the contract you signed say about unpaid meetings?

I'm getting paid as part time. The meeting didn't say unpaid, just that we were required to attend.

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Sounds like they're ripping you off. If you're a minute late you can't be deducted 15.

 

Rounding is fairly common practice, but it's usually to the nearest 15 or 30 minutes actual time worked for an entire day - having a start time of 7:02 adjusted to 7:15 is just not on.

 

Meetings outside work hours - bullshit there too. If you were on a fixed salary with this as a condition, then fair go. Saying you get cheap coffee isn't justification for any unpaid work or attendance.

 

Penalty rates - would depend on what award you're covered by or if you've signed a contract. But just having a contract drawn and signed doesn't necessarily make a work practice legal.

 

Work for competition - if you signed a contract to that effect, then probably fair enough. I can't say I've heard of that sort of thing happening in a non-professional job. In any case there should also be a time limit, usually 3 or 6 months.

That sort of thing is more common in the case of someone selling a business. Usual clause is they don't compete within X km for Y months into the future.

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that sounds like a massive stuff around. In the army they give a service allowance which pretty much means you get paid 24/7 and they can make you start, finish or stay back for when ever they want. These days in the civilian world as soon as the clock hits 7:30 I walk out no matter what, If you dont get over time you should walk out when your shift is finished and you stop getting paid.

 

If you get in trouble for it, play confused and say you checked the time sheets and you dont get paid past a certain time so you thought it would be OK if you left. depending on if you want to keep the job or not you can always say "Im sorry it will never happen again" if they go to fire you about it.

 

Even if you did get fired for walking out after the shift is finished im sure you could catch em on an unfair dismissal law based on the situation

Edited by xnatex

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I'll place odds on bets that his contract has the usual "Reasonable unpaid overtime" clause in there somewhere.

 

Hence the fair-work australia link I posted.

 

AD

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Can you link me to the bit that deals with unpaid overtime? I'm at uni and having trouble navigating the site on this shitty wireless

 

 

No, I'm pretty sure AD linked you to FWA so you can contact them.

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I don't know your employment contract. I'm also not a lawyer in any way shape or form. I posted the link to point you in the right direction.

 

I don't want to be responsible for you doing something that breeches your contract or makes your situation worse.

 

AD

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-Our contract states that upon leaving this job, we're not allowed to work at a rival cafe or subway within 6km (This particular cafe also has a video store and subway attached).

Seems to be a standard wank clause these days but I've been told that it wont stand up in court. (IANAL)

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-Major issue is pay, I'm working for almost minimum wage (just under about $17/hour) so it's hard enough to motivate myself to work as hard as I do. But when I check my time sheets each week, I'll often see something like "Actual hours worked: 42.45" and then in the next column "Hours paid: 39.15". I'll consistently see times where I'm meant to start at 5:00, but I'll clock in at 5:01 or 5:02 so the "Pay start" time for that day will be at 5:15. Not only this, but when I'm doing late night closes, for which the rostered finish time is 11:30pm, I'll often not get out until about 12:45am or even 1:00am, just because the place is so god damn busy until that time and most of the experienced closers have quit, leaving me and other new people to learn as we go. Again, when checking my time sheets for these closes, I'll only be paid until 11:30pm, even though I've worked an extra hour beyond that. Supposedly this is because the rostered finish time is 11:30pm and we've worked too slow.

I'd be pretty annoyed about that. Ask for someone experienced to stay behind so that you can learn the ropes and get out on time. If they won't or that's not the problem (i.e. it just takes that long) then I'd be walking out one way or another at 11:30. If that means kicking customers out and doing a half-arsed job cleaning up, so be it.

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Not that I want to sound stalkerish, but I have a subtle feeling I know where you work. Can't imagine there's too many cafe/Subway/video store combined stores around, and I vaguely recall you living in Sydney.

 

The hours worked clock-on issue sounds legitimate to me, not so sure about the finishing late part. I'd just be dealing with that, trying to find ways to finish on time like the others. Pay being withheld for those reasons is incredibly questionable. How much pay are we talking? Unpaid meetings is fairly common, as far as I'm aware.

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I am no expert but I do recall somewhere that it's a case of "good luck to your former employer" if you got a job around the corner. The non compete clauses are normally to do with people with industry specific IP or serving in a much higher dollar bracket. If a non compete clause is too restrictive, it will be pretty much ruled in your favour, even if your retarded employer tries to do something about a young kid earning sweet fuck all at a cafe.

 

You have the right to earn a living and would be how the courts would most likely see that. I have been known to poach people from other work places (IT related) that were under a non compete clause but it was never challenged based on the fact that "you have a right to earn a living". The amount of time and money this cafe would need to invest wouldn't make it worth their while considering there would be a big chance they would lose.

 

So yeah, what are they going to say? It's not like you are starting a new business around a corner - you are an employee and they would most likely have to prove that you took their special secret coffee making skillz and gave it to their competition.

 

Might be worth googling non compete clauses and Australian law first though and as suggested, read your bloody contract.

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get another job

dont tell them fuck all

then when late shift kicks in just leave and smile at 1130

maybe send a text on the way out to your boos who will be asleep so they can wake up and go clean their own shit up without pay

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First off, I am NOT a lawyer. This is NOT legal advice - if it comes to that, you will need to see a real lawyer. This is just a few suggestions as to where to start looking.

 

AD was absolutely right that you should check out FWA. They are the relevant governing body.

 

Before you go down that route, though, you should do a little personal research. Read your contract. It's not the be-all-and-end-all, but for the most part, you're bound by it. It will cover any issues of overtime, penalty rates, reductions in pay, etc.

 

Are you a member of a union? If so, have a chat with your union rep. If not, consider joining one.

 

I'm assuming it's an enterprise agreement, not an individual contract. If so, it's already been submitted to FWA, and presumably been approved. When that happened, they would have applied the BOOT (Better Off Overall Test). Basically, the criteria is whether you're better off overall under the contract or the award. There's probably more to it than just a 10c pay premium, but you haven't really given us much detail to work with.

 

As for the overtime, one thing that a contract can specify is that unrequested overtime is unpaid. Basically, at some workplaces, you only get overtime if they actually ask you to stay back. If you offer ("do you need me to stay back?") or do so without being explicitly asked or told to, then you don't get paid overtime. I don't know if that is the case for you, though, as you haven't given enough details. I'd advise against just walking out at 11:30 if you haven't finished your assigned tasks, though. It could be construed as failure to follow a lawful direction ('complete these tasks, including cleaning up, before you leave'), which is grounds for termination (and thus not unfair dismissal).

 

With regards to the restrictive covenant, the basic law is that they are presumed invalid. However, this can be rebutted if: the employer has a legitimate interest, the covenant is designed to protect that legitimate interest, and the covenant is limited to what is reasonably necessary to protect that interest. Typically, these covenants are used where there is either some form of IP to protect (usually trade secrets or the like) or to stop the employee from poaching clients or contacts. You wouldn't really be likely have anything like that, which suggests against there being a legitimate interest, but its hard to know without more details. If there is, then it comes down to the exact wording of the covenant. It's limited in terms of geographic scope, and in terms of the prohibited work, both of which suggest that it may be reasonable. However, you don't say how long the prohibition lasts. If it is for, say, a few months, then it may be reasonable. If it's for a few years, or indefinite, then not. Overall, though, this is something you'd really want to see a lawyer about. I've only given a general outline. YMMV.

 

Oh, and as a sidenote: it's very unlikely that they would actually seek to enforce this. The effect on their business of a grunt working in another cafe is likely to be minimal, unless they have some trade secret (such as a special way to make the coffee) that they've trained you in. As such, the costs of enforcing it would vastly outweigh the benefits. However, if you burn your bridges badly enough when you leave, you might provoke such actions out of spite. It's rare, but it happens.

 

Just to reiterate: Contact FWA. If you're still in doubt GET LEGAL ADVICE FROM A LAWYER, NOT A FORUM.

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Better than trusting advice from a forum. Odds are he won't need one, but if it comes to it - better than making mistakes left, right, and center.

 

His first step should be to read his contract. Then he should contact his union (if he's a member). Then he should contact FWA.

 

If all of that doesn't resolve the issue, and he deems it worth taking further, well, he'll need a lawyer for that.

Also, if he gets himself fired for walking out early, or sued for taking a job in breach of the restrictive covenant, and wanted to dispute the matter, then he'll also need to lawyer up.

 

So he probably won't need one, but he shouldn't really be relying on anything he reads here.

Edited by DaCraw

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Indeed. If you're a member of a union then speak to them. They'll be able to provide advice on your contract and legal representation should you require it. That's what they're there for.

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I'd have quit already if I were you. Deducting pay for looking at a phone, wtf kind of mentality is that. Sure, if you spent your entire shift staring at, but a quick glance at a message shouldn't be a problem, unless the contract says no phones on your person at all times. The second they deducted my pay I'd have been asking questions.

 

Find another job as at just about anywhere, even as a kitchen hand you'll get paid just as much or more dude.

Edit: Even Mcdonalds would pay better and treat you better.

Edited by p0is0n

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BTW you want to contact the Fair Work Ombudsman (ph: 13 13 94), not Fair Work Australia directly.

 

The Ombudsman deals specifically with wage and entitlement disputes.

 

From (my brother's) experience they're actually quite helpful and will provide free advice and pathways for resolving your issues, if possible.

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Another consideration is whether or not you want a reference from these people. If you think you have enough already, then it doesn't really matter if you piss them off (unless you're in a small town or want to get into a related small/incestuous industry). If, however, you do want a reference, then you need to be a bit more diplomatic in how you handle things. I don't just mean in how you quit - although that goes without saying - but also in how you handle the dispute.

 

I know a guy who pursued some perfectly valid claims (workers comp + backpay dispute). He didn't really play hardball per se, but he knew his rights and wouldn't accept anything less. His relationship with his employer soured quite substantially as a result. When he eventually gave his notice and went to find another job, he found that all of the local employers had been warned about him. It was a small industry in a small city, so they all knew each other. He's since successfully moved on (and to a better line of work), so it's not all bad, but still.

 

Don't burn your bridges unless you have a backup plan, and don't underestimate the power of a bad reputation. It's also worth remembering that one of the more common questions in a job interview is "so why did you leave your last job."

 

Edit: I'm not saying that you should just roll over and take it. Certainly look up your rights. But pick your battles, and decide whether or not its worth ALL of the potential consequences - especially if you'll only have to put up with it for a short while before your planned next job.

Edited by DaCraw

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