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WA No Employment Contract - Where Do I Stand?

Discussion in 'Employment Law Forum' started by Brad212, 17 July 2017.

  1. Brad212

    Brad212 Member

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    Hi guys,

    I've been a full time employee for the company I currently work with for the past 2 and a half years. I never signed an employment contract when I started.

    A while back, we agreed to do split shifts for a few weeks to get the work done and there has been talk of starting split shifts again (I haven't been asked). My circumstances have changed and my fiancée has now started work and my daughter will need someone home at night. So I can't do the split shift thing anymore. Because I have no contract, where do I stand?

    I've asked for a contract several times but I keep getting brushed aside with excuses.

    Any help would be great. Thank you.
     
  2. kimsland

    kimsland Well-Known Member

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    Hi

    I'm sure you will receive a reply from one of the better 'legal representatives' here. I'm just going to throw in my opinion and hope I am not not stepping on anyone's toes here.

    If you have been working continuously in the same shift with the same hours for more than 6 months (my understand but requires confirmation) then that is your normal shift, and you cannot be forced to another shift unless both you and the employer agrees.

    If you accepted a 'split shift' and have subsequently already been working those hours, then that is your normal shift, and therefore you cannot demand your old shift back (again my personal understanding through experience).

    This part: "do split shifts for a few weeks", seems to your best defense (communication to the employer) in the matter, as your understanding was it was only a temporary change, and then you'd be back to your normal shift again.

    Therefore I would approach the employer and state you wish to go back to your normal shift you have been working for years. And that it has now been a 'few weeks', therefore you wish to stop this temporary shift adjustment.

    It's all semantics. By the way, by working at your employment for so long (if you have common expected shift times during this time, and that others agree these are your shift times) then you are now covered fully in employee 'contract'.

    My opinion :)
     
  3. Brad212

    Brad212 Member

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    Ok great, thanks for that. 1 last question, when you say "employee contract", does that mean state legislation or like a broad set of rules? Because I don't have an actual workplace employment contract
     
  4. kimsland

    kimsland Well-Known Member

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    Employment 'contract' really just means you are governed under an award. In other words, you are already a recognized employee by law, without ever signing anything. I think of the contract as your payslips (or bank deposits) by the employer.
     
  5. Brad212

    Brad212 Member

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    Great, thanks a lot for your help
     
  6. Serge Gorval

    Serge Gorval Well-Known Member
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    Kimsland, that's not necessarily true.

    Brad, do you know if you are an award covered employee?

    i take it that you are based in WA, which has it's own unique rules.
    firstly, you need to determine whether you are a fair work System employee ( federal system , e.g. fair work act) or State system employee ( is your employer, a pty ltd company?)

    if you are award covered ( you may not necessarily know whether you are) change in rosters are provided by the applicable award and you need to consult there at first instance.

    if you are not award covered, then your contract/ terms of your employment are derived from custom. this becomes a breach of contract issue. an employer cannot just force you to accept a unilateral change to your employment terms. e.g. say you have been paid 60k they can't just suddenly start paying you 50k. this is analogous to your situation.

    more enquiries are needed to give any meaningful response.
     
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  7. Brad212

    Brad212 Member

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    Great response thank you!! Yes I live in WA.
    I'm not sure if I'm award covered but my company is pty ltd
    Is there a way to find out if I'm award covered?
    Once again thanks for the reply. If I know where I stand before they change shifts I at least have a leg to stand on
     
  8. Serge Gorval

    Serge Gorval Well-Known Member
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    coverage of Awards depends on your occupation/trade. there's 122 Modern Awards. I suggest as first stage measure, take a look through the awards and find out whether any apply to your industry/occupation.
     
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