QLD Part Time Employment Contract but Working Full Time Hours

[Sherie2016]

Hi everyone,
I hope someone can help me out. Long story short, I have been working full time hours on a part time employment contract for the last 4 years.

Until I brought it up to HR a year ago, I was working extra hours only at the normal rate without full time employment benefits. When this was found, they rectified by making the back-payment for all the additional hours I had done, as those hours should have been paid at an overtime rate.

On the letter issued by HR, it stated my role will remain on the part time employment contract, and from time to time I may be required to work additional hours due to company's operation change. Prior to this engagement I will receive a written confirmation of the particulars of each engagement.

The letter was dated June 2014 and It has been over a year now and I am still working full time hours ever since. The fact is I have never ever been issued with any confirmation of such engagement for additional hours as stated in the letter. Additional hours have been "norm" and "expected" by everyone.

Despite of the fact that I had a number of attempts at them to consider offering me a proper full time contract whilst I am literally working full time hours, this was never considered. On top of that, I have never been consulted by managers or HR about my condition once, expect for when I had to reach HR about the unfair condition I was placed on before the back-payment.

Now all of the sudden I have been advised that the management is creating a brand new additional full time role which will take over some of my workload. Therefore they will not require me work those additional any longer. And so that I will only be given the part time contract hours.

I feel that this is a unfair treatment. There were number of years time when they could sort this out by placing me on a full time employment contract whilst it was expected, norm and required that I do full time hours. They kept me on part time for all these years with all the responsibilities, now they want to create this new role and they think they can simply cut my hours back.

I would like to know the other's opinion on my situation, and if someone could confirm the company is breaching employment law.

Many thanks,

 

[Ivy]

Hi Amy,

If you have been working full time hours then as a starting point you should be given the annual and personal (sick) leave for those hours.

The Fair Work Commission may well consider that you have been compensated enough for the period until June 2014, however I definitely think that since then you are at minimum owed the entitlements mentioned above.

The reason is that the Fair Work Commission (and courts) don't just look at the written contract when they work out your 'actual' work contract. If there are ongoing expectations in terms of hours, workload and responsibilities that differ from the written contract, they will usually find that the terms of the employment are unwritten/ implied.

So you are right that there is potentially something unlawful about your employment situation. Furthermore, if the Fair Work Commission finds that your contract is for full-time hours then your work won't be able to simply cut back your hours unilaterally.

In sum I think you should call the Fair Work Ombudsman on Monday. From there you will probably be offered a free telephone mediation with your employer and one of their independent mediators. If the mediation fails then you can make an application to the Fair Work Commission and a Commissioner will review your situation and make a binding determination.

 

[Sherie2016]

Hi Amy,

If you have been working full time hours then as a starting point you should be given the annual and personal (sick) leave for those hours.

The Fair Work Commission may well consider that you have been compensated enough for the period until June 2014, however I definitely think that since then you are at minimum owed the entitlements mentioned above.

The reason is that the Fair Work Commission (and courts) don't just look at the written contract when they work out your 'actual' work contract. If there are ongoing expectations in terms of hours, workload and responsibilities that differ from the written contract, they will usually find that the terms of the employment are unwritten/ implied.

So you are right that there is potentially something unlawful about your employment situation. Furthermore, if the Fair Work Commission finds that your contract is for full-time hours then your work won't be able to simply cut back your hours unilaterally.

In sum I think you should call the Fair Work Ombudsman on Monday. From there you will probably be offered a free telephone mediation with your employer and one of their independent mediators. If the mediation fails then you can make an application to the Fair Work Commission and a Commissioner will review your situation and make a binding determination.

Dear Ivy

I appreciate you taking the time to write to me.

Is it a good idea to let managers/HR know that I am in contact with Fair Work at this stage?
This new role will be introduced soon however I have not been officially advised that they will cut my hours yet. However I was told that there is a big chance they will. It sounded as if I had no choice but follow their order as that is the contract I am on.

Also, if this was the way they are using to effortlessly get rid of me (or my role), hoping I will resign as I won't be financially stable on the cut-back hours, without having to offer me a redundancy, what rights do I have?

 

[Ivy]

Call Fair Work first and then approach your employer once you have a better understanding of your course of action.

 

[Sherie2016]

Hi Ivy

Thank you yes I will do so - hopefully today or tomorrow. (hard to find time to call when at work)
I will keep you updated.

 

[Sherie2016]

Call Fair Work first and then approach your employer once you have a better understanding of your course of action.

I called Fair Work ombudsman - they said all they can advise is that the company is not breaching as they are paying me for those additional hours at overtime rates as per the award. They suggested I speak with Fair Work Commission more about the fairness and such.