VIC leave entitlement

[Glenn Groves]

Hi, I will try to explain this best I can. We are on a seven-day roster. Some of us do 12-hour day and night shifts, and others are on an 11-hour day shift 7-day roster only. We are on an annualised salary because of fluctuating pay amounts per week.

About 15 years ago, people in my area at work had an agreement with our then CEO and area manager. Part of that was when taking leave, we would be paid our wages for our hours that we normally work, but they would only deduct 7.6 hrs from our leave entitlement. Now we have a new CEO and manager and they are saying the company stuffed up and now they are going to change it to deduct 12 or 11 hrs from our entitlement. Unfortunately, there is no paperwork to verify this except the payearoll to show this is how it's been paid for that long.

Just wondering where we would stand legally under employment law if we were to fight this.

 

[Sophea]

Hi Glenn, I'm not an employment lawyer, but from a contractual point of view, it would appear that by mutual agreement you (and your fellow employees) and your employer varied the terms of your employment contract to adjust your leave entitlement by only 7.6 hours. Therefore, your employer cannot unilaterally change that, unless you agree to it. You may be entitled to claim breach of contract by your employer.

I would speak with an employment lawyer that offers consultations to see if you have a case. At a minimum,you may be able to seek mediation or other alternative dispute resolution procedures to resolve the matter with your employer.

 

[tinytim]

Hi Glenn,
I work at a site that has just changed rosters so this issue came up, its complicated. I work a 12.5 but get 9.87 deducted for a days annual leave but only 7.5 hours a day for LSL. That is due to the rate of accrual.
The starting point is to establish what your annual leave allowance is. EBA, NA, contract or where ever. Next find out the rate of accrual then make sure the rate of deduction still gives you your entitlement. My EA actually specifies the annual accrued hours.
In short your employer can deduct what ever figure they like as long as it balances the accrual rate to give you your entitlement.
If the previous CEO ended up giving you more that you were entitled to then its probably going to be seen as an error of fact, a mistake, not a contract but that's just an experienced but non legal opinion.
You made hay while the sun was shining, take it as a win.
If the new rate of deduction makes you short on your entitlement then your new employer has most likely made an error.