QLD Casual Employer Behaviour - Shifty?

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logicalor

Active Member
17 March 2018
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Hi there

This is my first post to this forum - I apologise if any of these questions have been answered before.

My wife is a casual employee at a local foot spa. Her duties include nail care, pedicure and light massage. The employer appears to exclusively hire staff from overseas. My wife is also from overseas, with temporary residency while we await our partner visa. Most of the employees are casual, but a minority are employed full time.

There are a couple of things that have raised red flags when my wife has discussed some of the business's rostering processes and other activities with me.

The first is that, apparently, the receptionist chops and changes "break time" on the fly. If a client cancels a booking, then the receptionist alters the roster and assigns a "break" - ie unpaid break - to the staff member who was assigned to that client for the duration of the appointment. This can range from half an hour to an hour. I could understand if the receptionist were moving break time - but she is adding break time - effectively cutting staff hours on the fly while the staff member is at the workplace. Is this shifty? To me it looks like the staff member is being treated as a subcontractor rather than a casual employee.

The second is that this receptionist occasionally calls my wife up fifteen minutes to half an hour before my wife is scheduled to work, and tells her a client has cancelled so she should come in later. My understanding is that there needs to be minimum notice when a staff member's roster is reorganised, and fifteen minutes to half an hour's notice is nowhere near the minimum. Is my understanding correct?

The third is that the employer recently started paying penalty rates for work on Saturdays. By recently, I mean in the last couple of weeks. Has any legislation changed which would prompt this, or should the employer have been paying penalty rates all along? If they should have been paying penalty rates all along, what would our next steps be? We don't have full records of my wife's rostered hours for her tenure - does the employer need to keep a record of this?

Thanks in advance for any information or pointers to information that anyone can provide.

Cheers
 

Rod

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What award is your wife working under?

Some awards do not require notice periods and there may well be other special award conditions to consider.

Is your wife receiving payslips?
 

Adam1user

Well-Known Member
5 January 2018
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2,219
hi,
I don't have much knowledge in this matter but like to give my point of view on this, I don't think the employer is following a "Shifty" approach, the reason is: the place of employment is a stand alone shop and not a franchise, right? If so, then the employer is cutting out time as there are no customers and not because of cost cutting, if there are no customers, then there is no income coming, but if there is income coming and the employer is cutting the hours, then i think this would be considered shifty. What you described is the employer is managing the work per the customers inflow, and not the intention to defraud. I am sure you don't expect the employer to pay from their pocket, if so, it will not stay open for other minute. It may seem unfair or unreasonable, but believe me working like this better than sitting at home with no work.
As for the awards, you can check about it, if it did happen, I think it would be wise to give the benefit of doubt for the employer and ask for the under payment if any.
Has there been any other behavior from the employer that gives negative vibe?
From the info you wrote, I think it is a small business and is trying to keep afloat, talking with them is the best way to better your situation and the employer, having negative thoughts may destroy your wife's employment.
 

logicalor

Active Member
17 March 2018
5
0
31
What award is your wife working under?

Some awards do not require notice periods and there may well be other special award conditions to consider.

Is your wife receiving payslips?

Hi Rod, thanks for your response

My understanding is that she is working under the Hair and Beauty Award 2010. She is receiving payslips.

I had a look at the award and can see the following with regard to notice of roster changes:
  • 29.2 Due to unexpected operational requirements,an employee’s roster for a given day may be changed by mutual agreement with the employee prior to the employee arriving for work.
  • 29.4 Rosters may be changed at any time by mutual agreement between the employer and employee.
  • 29.5 An employee’s roster may not be changed with the intent of avoiding payment of penalties,loadings or other benefits applicable. Should such circumstances arise the employee will be entitled to such penalty,loading or benefit as if the roster had not been changed.
These seem to conflict. I'm not sure which has precedence if they conflict.

hi,
I don't have much knowledge in this matter but like to give my point of view on this, I don't think the employer is following a "Shifty" approach, the reason is: the place of employment is a stand alone shop and not a franchise, right? If so, then the employer is cutting out time as there are no customers and not because of cost cutting, if there are no customers, then there is no income coming, but if there is income coming and the employer is cutting the hours, then i think this would be considered shifty. What you described is the employer is managing the work per the customers inflow, and not the intention to defraud. I am sure you don't expect the employer to pay from their pocket, if so, it will not stay open for other minute. It may seem unfair or unreasonable, but believe me working like this better than sitting at home with no work.
As for the awards, you can check about it, if it did happen, I think it would be wise to give the benefit of doubt for the employer and ask for the under payment if any.
Has there been any other behavior from the employer that gives negative vibe?
From the info you wrote, I think it is a small business and is trying to keep afloat, talking with them is the best way to better your situation and the employer, having negative thoughts may destroy your wife's employment.

Hi Adam1user, thanks for your response as well.

I'm not really concerned about what is pragmatic for the employer, more about the legality of what they are doing. I'm mainly interested in fact finding just so we know where we stand . It is a bit disturbing that you suggest not pursuing appropriate recourse for my wife at her place of employment, but I definitely understand why, given the regression of employee rights in Australia. I'm aware that if we raise the issue with the employer it could make things hard for my wife. Thanks for your concern though
 

Rod

Lawyer
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Award clause 29 needs to read in conjunction with cl 13.

Your wife is a casual and not entitled to notification: cl 13.4.

Bottom line is the employer doesn't appear to be breaching award conditions from the facts in your 1st post.

I agree with your comments re: regression of employee rights, and it is good you appreciate the difference between legal rights and what happens in practice. Sometimes some money is better than no money.
 

logicalor

Active Member
17 March 2018
5
0
31
Award clause 29 needs to read in conjunction with cl 13.

Your wife is a casual and not entitled to notification: cl 13.4.

Bottom line is the employer doesn't appear to be breaching award conditions from the facts in your 1st post.

I agree with your comments re: regression of employee rights, and it is good you appreciate the difference between legal rights and what happens in practice. Sometimes some money is better than no money.

Thanks Rod
 

Adam1user

Well-Known Member
5 January 2018
577
33
2,219
I'm not really concerned about what is pragmatic for the employer, more about the legality of what they are doing. I'm mainly interested in fact finding just so we know where we stand . It is a bit disturbing that you suggest not pursuing appropriate recourse for my wife at her place of employment, but I definitely understand why, given the regression of employee rights in Australia. I'm aware that if we raise the issue with the employer it could make things hard for my wife. Thanks for your concern though

Hi again, it seems you misunderstood me, I am not taking the employer's side at all or yours, I responded to what you wrote. From what you wrote, it does not seem that the employer is doing anything wrong. if you read my response again carefully, you will notice that I asked if there are any other behavior from the employer with negative vibe? if there is nothing else that shows the employer is doing anything wrong or with the intention to defraud, it seems that the employer is doing for the best of the business and the employees, as I mentioned if you expect the employer to pay out of their pocket, the business will close down and your wife will not work. This was my point of view. I think sometimes harsh or unreasonable practices may be followed to keep the business going, having both the employer and the employee's objectives in one direction will benefit both. If you are not concern about the employer's objectives and benefit, then it is better for your wife to leave, as I mentioned, both has to be in the same direction. This makes the workplace a better workplace.
 

logicalor

Active Member
17 March 2018
5
0
31
Hi again, it seems you misunderstood me, I am not taking the employer's side at all or yours, I responded to what you wrote. From what you wrote, it does not seem that the employer is doing anything wrong. if you read my response again carefully, you will notice that I asked if there are any other behavior from the employer with negative vibe? if there is nothing else that shows the employer is doing anything wrong or with the intention to defraud, it seems that the employer is doing for the best of the business and the employees, as I mentioned if you expect the employer to pay out of their pocket, the business will close down and your wife will not work. This was my point of view. I think sometimes harsh or unreasonable practices may be followed to keep the business going, having both the employer and the employee's objectives in one direction will benefit both. If you are not concern about the employer's objectives and benefit, then it is better for your wife to leave, as I mentioned, both has to be in the same direction. This makes the workplace a better workplace.

Hi Adam1user - you're right and I apologise. There is a bit of a negative vibe from a particular receptionist which has led to this particular line of enquiry, and the as-yet-unaddressed question about the sudden application of penalty rates is a bit of a conundrum, but it doesn't seem that the business itself is intentionally doing anything shifty.

Thanks again for your response and your input was definitely helpful.

Cheers
 

Matthew Lynch

Lawyer
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18 July 2016
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Hi, she should have been getting Saturday penalty rates all along. Yes the employer is required to keep records. You should request the records. Please note this from the award:
13.6 The minimum daily engagement of a casual is three hours.
 

logicalor

Active Member
17 March 2018
5
0
31
Hi, she should have been getting Saturday penalty rates all along. Yes the employer is required to keep records. You should request the records. Please note this from the award:
13.6 The minimum daily engagement of a casual is three hours.

Hi Matthew

Thank you very much for this information. We're hesitant to push them about owed penalty rates but I think it's important that it be addressed. We'll have a think about the best way forward.

Cheers