VIC Hours of work and salary

[Harry De Elle]

Hi,
My employment contract states that:
I am paid for 37.5 hours of work per week.
I have been with this employer for 6 years
I start work at 7am and finish at 330pm = 8 1/2 hr day
I have 30 minutes for unpaid lunch break, means I work 8 hrs / day.
Given that I work 8 hrs / day x 5 days means that I work a 40 hour standard working week.
At times I am required to work back at work which I do not have any issue with.
Therefore in my standard working week I am expected to work an extra 2.5hours / week and to not be paid.
I am an award free employee.
Is the employer obliged to pay me for the extra hours which I work which are not overtime ?
They say that they are not obliged to pay any thing more than 37.5 hours as per the agreement.

 

[Rod]

You are likely underpaid.

You have a rolling 6 year window for underpayments. But with LSL due in 12 months, it is likely better to wait 12 months before raising this as an issue.

 

[Harry De Elle]

Hello & thx Rod, LSL refers to what? Long service leave? unfortunately I was made redundant early this year.

 

[Harry De Elle]

I am looking at commencing proceedings in the MCV for breach of contract:
1. Exceeding Contracted Hours:

• The contract clearly states a 37.5-hour workweek with an 8-hour workday (net of lunch break). However, the employee is expected to work 8 hours per day, consistently exceeding the contracted 7.5 hours without overtime compensation. This could be argued as a direct breach of the agreed-upon work schedule.

2. Unreasonable Flexibility Clause:

• While the contract mentions flexibility, it doesn't explicitly authorise exceeding the 37.5 hours regularly without compensation. Depending on industry standards, the employee could argue that the "flexibility" clause is being applied unreasonably to demand consistent extra work without additional pay.

3. Implied Term of Good Faith:

• Even without express overtime clauses, it should recognise an implied term of good faith in contracts. This could mean that the employer shouldn't expect the employee to work significantly more than the contracted hours without compensation, as it violates the spirit of the agreement.

4. Unfair Labor Practices:

• Depending on the jurisdiction, exceeding contracted hours without proper compensation might violate broader labor laws and regulations against unfair labor practices. This could be a potential argument if the employee's situation aligns with specific legal definitions.

 

[Rod]

Suggest you contact me next week, but not Monday.

LSL = Long Service Leave.

I do not recommend the Maggies court for this type of claim.

Redundancy genuine? And on what date (<21 days ago)?

 

[Harry De Elle]

I have argued that it is not a genuine redundancy. FWC conciliation which did not settle.
If the unpaid wages claim was to go through the FWC and as I was on a high salary my wage would well exceed the highest level of classification in the Building and construction on site award. However, if the compalint was made in maggies on breach of contract then the terms of the contract woud be argued which wiould not restrict it to any minimum wage argument restricted by a modern award.

 

[Rod]

If the unpaid wages claim was to go through the FWC

It can't.

What type of claim did you make to the FWC (GP or unfair dismissal)? Conciliation is not the end of the matter unless you withdrew or settled.

However, if the compalint was made in maggies on breach of contract

Not the best venue for underpayment of wages. Likely also cannot use Federal Circuit Court. County Court might be better.

 

[Agberia]

It can't.

What type of claim did you make to the FWC (GP or unfair dismissal)? Conciliation is not the end of the matter unless you withdrew or settled.


Not the best venue for underpayment of wages. Likely also cannot use Federal Circuit Court. County Court might be better.

I suggest you speak with a Solicitor on Fiverr, to know the next step to take regarding your case.

 

[Harry De Elle]

FWC - unfair Dismissal... thanks