NSW Hours Worked Outside of Contract - Can I get Paid for Them?

[Jopiter]

I am a business consultant in the hospitality industry. My job involves helping businesses create their business from the ground up.

The contract stated that I would work 50 hours over 5-6 days each week over a 4 month trial period. However, based on the unfolding workload, I had to keep exceeding my hours, with some weeks at 70 hours a week.

I did not invoice my clients for these extra hours each time it occurred or when they asked me to perform duties that were outside the initial contract as I was under a 4 month trial basis with them and working on the basis of creating a long term relationship with them. However, I did notify them when I exceeded my hours and performed outside of my contract, to which they acknowledged and showed appreciation through email.

Last week, due to changes in their company direction, they have decided not to renew my contract. When I now bring up the topic of the extra hours worked that need to be paid, they now refuse to. Instead they try to find loopholes in the contract not to pay me.

What rights do I have under contract law to stick to my guns and demand they pay me?

Or do I need to negotiate with them? My concern is that by negotiating down on what they owe me, it may weaken my position and and let them think that they can get away with not paying for work conducted.

Any advice or insight would be greatly appreciated

Thanks

 

[Rod]

Excess hours: Don't like your chances of claiming any amounts over 50 hrs/wk. Any time over 50 hrs/wk seems like a business risk you undertook of your own volition.

It hurts, but unfortunately if the extra time is not covered in your contract, AND you've already advised them that you are not charging them, your legal chances of being paid are close to non-existent.

Extra work: If you did extra work that was outside the contract and they acknowledge that and you have not said it is free, then you have excellent grounds to claim and invoice for that work. Correspondence though between the parties will be crucial here.

 

[Sophea]

Hi Jopiter,

I agree with Rod to the extent that in circumstances where the business has not agreed in the contract to pay you anything in addition to the 50 hours per week, you cannot charge them for it. Especially when you have indicated to them that it is at no charge. Its like going and doing work people haven't asked you to do then charging them for it, its not fair. If they had asked you to do additional hours, then at that time you should have negotiated a rate for the additional hours, or stated to them that you will work the additional hours for free for the trial period, but after that any extra hours will need to be paid at a specified rate.

If you can get anything out of them you will be lucky, but I don't think you have any grounds to claim the monies from them because there was simply no agreement to pay in respect of the additional hours.

 

[Sarah J]

Hi Jopiter,

I agree with the above, your chances look slim. Getting paid for consultancy work, where you're working as a contractor, is governed by the independent contract agreement you signed with the company. If the agreement mentions something about compensation for extra hours, then they are obliged to fulfil this otherwise they breach the contract (and you have an action in breach of contract). If the agreement is silent on this, and you worked extra hours and did not charge them for it at the time, then your conduct suggests that the 50 hour work term is an estimate but you still charge the flat fee of $X. Does the agreement specify payment by the hour or payment as a flat fee?

 

[Tim W]

I agree with @Sarah J .
Let's assume for the purpose of discussion that you were not a sham contractor*,
and, are not in some sort of flaky casual employee arrangement.

If you are a bona fide consultant, then you either
contracted to achieve an outcome, or to provide X hours of "consultation".
Either way, unless you have an express term in your contract as described above,
the extra hours will be hard to bill for.

Assuming you billed your client on bona fide Tax Invoices**,
you can opt to pursue the matter as an unpaid business debt.
But, like the others, without more, I cannot speculate
on your prospects of success.

And get yourself a business advisor/ mentor.
You might be an epic barista, or an FOH man of renown,
but being good at the work is only half the story.
You also need to run your business - you'd never see an electrician
working on a trial basis*** for four months - how are you different?

------------------------
* A sham contractor is a worker who is, really, an employee, but there is a pretence (a "sham") of being some sort of contractor. This is often a device used by employers to avoid paying proper employee entitlements.

** That is, not using a document that is more like a time sheet (by whatever name).

*** Which, in reality is probably some sort of ill-expressed contingent fee arrangement.

 

[Jopiter]

Hi Rod,
Totally appreciate your honesty and time spent to answer my question in so much detail. Helps me to understand where I stand much better

Excess hours: Don't like your chances of claiming any amounts over 50 hrs/wk. Any time over 50 hrs/wk seems like a business risk you undertook of your own volition.

It hurts, but unfortunately if the extra time is not covered in your contract, AND you've already advised them that you are not charging them, your legal chances of being paid are close to non-existent.

Extra work: If you did extra work that was outside the contract and they acknowledge that and you have not said it is free, then you have excellent grounds to claim and invoice for that work. Correspondence though between the parties will be crucial here.

 

[Jopiter]

Hi Sophea,

Thanks for shedding light on this matter with much clarity. Definitely helps me to know what to do and what not to do next time round. Appreciate you taking the time to address my question Cheers.

Hi Jopiter,

I agree with Rod to the extent that in circumstances where the business has not agreed in the contract to pay you anything in addition to the 50 hours per week, you cannot charge them for it. Especially when you have indicated to them that it is at no charge. Its like going and doing work people haven't asked you to do then charging them for it, its not fair. If they had asked you to do additional hours, then at that time you should have negotiated a rate for the additional hours, or stated to them that you will work the additional hours for free for the trial period, but after that any extra hours will need to be paid at a specified rate.

If you can get anything out of them you will be lucky, but I don't think you have any grounds to claim the monies from them because there was simply no agreement to pay in respect of the additional hours.

 

[Jopiter]

Hi Sarah,
Some great questions which indicate I need to give this area more thought when drafting up the new contract.

Thanks so much for your advice

Hi Jopiter,

I agree with the above, your chances look slim. Getting paid for consultancy work, where you're working as a contractor, is governed by the independent contract agreement you signed with the company. If the agreement mentions something about compensation for extra hours, then they are obliged to fulfil this otherwise they breach the contract (and you have an action in breach of contract). If the agreement is silent on this, and you worked extra hours and did not charge them for it at the time, then your conduct suggests that the 50 hour work term is an estimate but you still charge the flat fee of $X. Does the agreement specify payment by the hour or payment as a flat fee?

 

[Jopiter]

Hi Tim,

Appreciate the legal perspective you provide. Very valid points I need to consider and integrate into the systems of my business.

Cheers

I agree with @Sarah J .
Let's assume for the purpose of discussion that you were not a sham contractor*,
and, are not in some sort of flaky casual employee arrangement.

If you are a bona fide consultant, then you either
contracted to achieve an outcome, or to provide X hours of "consultation".
Either way, unless you have an express term in your contract as described above,
the extra hours will be hard to bill for.

Assuming you billed your client on bona fide Tax Invoices**,
you can opt to pursue the matter as an unpaid business debt.
But, like the others, without more, I cannot speculate
on your prospects of success.

And get yourself a business advisor/ mentor.
You might be an epic barista, or an FOH man of renown,
but being good at the work is only half the story.
You also need to run your business - you'd never see an electrician
working on a trial basis*** for four months - how are you different?

------------------------
* A sham contractor is a worker who is, really, an employee, but there is a pretence (a "sham") of being some sort of contractor. This is often a device used by employers to avoid paying proper employee entitlements.

** That is, not using a document that is more like a time sheet (by whatever name).

*** Which, in reality is probably some sort of ill-expressed contingent fee arrangement.