Author Topic: Employers (Read 7938 times)

mark40 · « **on:** February 07, 2011, 06:59:46 PM »

I know this has nothing to do with CT's and I apologise but I just want to ask others affected by cyclone Yasi if their employers have asked them to take Annual Leave for the days they were not at work on Wednesday or Thursday. My employer is and am wondering if it legal for them to do it.They say it is as it was out of their control (legal stand down) This sort of thing boils my blood that any employer treats their people like that given what has happened. If you have any knowledge of industrial relations it would be interesting to know. Again I apologise for not keeping with the spirit of this great forum.
Thanks,
Mark

Fivid · « **Reply #1 on:** February 07, 2011, 07:07:24 PM »

Could depend upon state or award but I believe that if you have more annual leave owing than you earn in one year an employer can tell you to take that leave. I am not an employer and stand to be corrected but that is what I have been told...

Estelle · « **Reply #2 on:** February 07, 2011, 07:39:34 PM »

Hi Mark,

Just wondering what options you think an employer may have or could be willing to cede.

Are you thinking leave without pay, employer sponsored special leave, other leave or conditions etc..? In these situations, employers (most) try to find an answer that would suit a majority of their employees and themselves. Some awards have special conditions to cover these situations.
Did the employer earn any money from your efforts during those two days. Some people are lucky to work for a large business or one with funds to cover these situations and are willing to do so. Others, the business may struggle and then if it fails, no work anyway.

I did an Industrial Law and Labour Relations course more than twenty years ago (12 months, 1 day a week at Sydney Uni - short and introductory - eye opening) and thought it was as easy as, until the questions and situations became more complicated. Ethics, industrial laws (State and Federal - all changed now) Common Law!! (biggie)... Can be complicated, can be straightforward.

You will know your employer. If you think they are not acting properly, talk to other employees if possible, and if you are lucky to have a good employer, talk to them.

Good luck. Hope it all works out.

Heiny · « **Reply #3 on:** February 07, 2011, 07:42:26 PM »

Hi Mark

I look after HR for a civil construction company of 86 employees, if you take a look at the Fair Work Act 2009 (which every employer is legaly required to make available for each and every employee) it states:

In the absence of any lawful right to stand down an employee arising under an employment contract or enterprise agreement, the Fair Work Act 2009 (Cth) provides a default right for an employer to stand down employees for a certain period. The effect of standing down an employee is that the employer is not required to make payments to the employee for that period. The Fair Work Act 2009 (Cth) right to stand down arises when an employee cannot usefully be employed during a period of time because of one or more of the following circumstances:

•industrial action (other than industrial action organised or engaged in by the employer);
•a breakdown of machinery or equipment, provided that the employer cannot reasonably be held responsible for the breakdown (this applies also to a breakdown of machinery of a third party supplier)
•a stoppage of work for any cause for which the employer cannot reasonably be held responsible (for example a flash flood which prevents employees from entering their work premises).

An employer can only exercise a Fair Work Act 2009 (Cth) right to stand down an employee if they cannot be usefully employed. If an employer could obtain some benefit or value from work performed by an employee then the employer will not be able to stand down that employee.

An employee is not taken to be stood down under the Fair Work Act 2009 (Cth) provisions during a period which the employee is taking paid or unpaid leave that is authorised by the employer or is otherwise authorised to be absent from his or her employment.

Where an employer stands down an employee the employee’s continuity of service is not affected and service-based entitlements such as annual leave or long service leave continue to accrue during the stand down period.

Hope this clears it up for you

Brett

Kit_e_kat9 · « **Reply #4 on:** February 07, 2011, 07:52:18 PM »

I think: if they tell you to go home early ... they pay you for that day. After that though, I'm not so sure.

Don't know what you would do if your workplace was "blown away" or "went under". I wouldn't expect to be paid in that circumstance if I had to take the time off. If I helped to clean up I'd expect to be paid. But I have no idea how it works for catastrophies.

Have you discussed this with an appropriate government department?

Kit_e

kochy · « **Reply #5 on:** February 07, 2011, 08:00:56 PM »

Contact your union

Jon · « **Reply #6 on:** February 07, 2011, 08:38:30 PM »

Keep in mind that unless you are under an EBA or other specific contract then you are covered under a state or federal award.
I am fairly confident that your employer must pay leave loading as well as your normal pay.

However from the look of the Fair work act he doesnt have to pay you at all.

If his actions adversely affect a previously booked leave period then fair call, otherwise, to be honest, I am not sure you have much to protest about.
Not what you want to hear, maybe ask him to pay as normal hours

cancan · « **Reply #7 on:** February 07, 2011, 08:53:22 PM »

When we were sent home with the floods we were paid for the part day but anyone that couldn't get back had the option to use up holiday or sick leave where as my wife got paid for all lost work days where she could not work and they were only allowed back in there office on Friday.

mark40 · « **Reply #8 on:** February 07, 2011, 08:56:05 PM »

Cheers for the info Brett. That clears is up the questions I have. Was not aware of this information. I don't expect to be paid for something out of their control as this situation was but just being told "you will do this or else you won't be paid" really p#ssed me off.

Juggs · « **Reply #9 on:** February 07, 2011, 08:57:19 PM »

all leave shuld be kept in a seperate bank account as its accrued

if he has no income comming in himself and it is a small buisness id consider the buisness itself and try and see it from his persepective

i am not there dealing with the issue so im not seeing all of the issues but in the long run you need a job and small buisness are doing it tough before all this happened anyway

i co manage a medium size buisness and just love employees that scream their pay is 1 hour late when weve just had 3 customers go bankrupt to the tune of 400k

BigDougie · « **Reply #10 on:** February 07, 2011, 09:58:49 PM »

Hey Mark, lucky enough to have a great employer, they said even though they didn't have to, they decided to pay the whole crew for Wed and Thurs, with us taking Fri as an RDO.

Couldn't,t really grumble bout that, depends on the employer I suppose doesn't it.

D

Flemo · « **Reply #11 on:** February 07, 2011, 10:17:59 PM »

I would have thought a few days al is prefferable to being told business is going under dcm? Really hard situation but same happened to me down here, and I took 2 days Statutory sick leave. Didn't have one sicky last year so 2 during the floods and I still have 8 from last year left plus this year. Always confuses me that you get 10 sick leave days per yr but after 5 yrs service without a sicky you get no pay out.

Barry G · « **Reply #12 on:** February 07, 2011, 10:55:31 PM »

As I understand annual leave, you are entitled to accrue up to 8 weeks leave - i.e. 2 years - and can then be required to take it. Agree with you that the way the matter was put to you was poor. One reason to belong to a union is that, when you are being told "do it or else" there is an expert on your side that you can ask. The 'HR' department work for the bos, so tell you what the boss wants them to, just as a real estate agent works for the vendor, not the purchaser - although both will tell you they are fair and impartial.

Flemo, the approach to sick you advocate is inequitable.
It is an entitlement, not a right, i.e. you are entitled to use it if sick, but don't have a right to bit if you are not. If you are sick then take the time off, if you aren't go to work.

Say, for example, I work for years and am well, so have lots of sick leave accrued when I retire, while you / your spouse have a bad run with health, so you use yours as sick / family leave. We both retire at the same time.
I have never understood why, in those circumstances, I should get paid a 'bonus' for having been healthy, while you get nothing.
Yes, I understand that, in some industries, employees approaching retirement take off 'months' of accrued sick leave before retirement. Well, if the employer believes this to be bogus they should challenge it. Would only take one case to stop the rot.

Heiny · « **Reply #13 on:** February 08, 2011, 05:23:38 AM »

Quote from: mark40 on February 07, 2011, 08:56:05 PM

Cheers for the info Brett. That clears is up the questions I have. Was not aware of this information. I don't expect to be paid for something out of their control as this situation was but just being told "you will do this or else you won't be paid" really p#ssed me off.

No worries Mark and I agree that your employer could have been alot more tactfull in its approach in dealing with this matter but I guess they are going through a pretty stressfull time also.

If you ever need to find information regarding your rights as an employee take a look at the Fair Work Act 2009 it will be in there, your employer must have copies readily available to its employees by law, if you are unsure ask your HR Manager. If they refuse to make a copy available to you contact the Fair Work Ombudsman http://www.fairwork.gov.au/Pages/default.aspx or go and get another job for a hopefully better employer.

Hang in there mate and I hope your'e back at work soon.

Juggs · « **Reply #14 on:** February 08, 2011, 07:23:46 AM »

ih it 10 years long service last week
i now have 9 weeks anual leave and 8 weeks long service
also have 9 weeks of sick leave
i only take 2 weeks off at xmas and a random week during the year a day here and there is just given too me for a long weekend

to get to the point a fella at work broke his leg at work spent 8 weeks in hospital and wasnt back at work for another 4 after wards
weve got guys in the factory who take every sick day entitled to them and anual leave
quite often they are up asking for pay advances as they have run short when they have miscalculated and taken a sick day (probably the only true times they are sick )

mark40 · « **Reply #15 on:** February 08, 2011, 07:53:22 AM »

Quote from: 73bubba on February 08, 2011, 05:23:38 AM

No worries Mark and I agree that your employer could have been alot more tactfull in its approach in dealing with this matter but I guess they are going through a pretty stressfull time also.

If you ever need to find information regarding your rights as an employee take a look at the Fair Work Act 2009 it will be in there, your employer must have copies readily available to its employees by law, if you are unsure ask your HR Manager. If they refuse to make a copy available to you contact the Fair Work Ombudsman http://www.fairwork.gov.au/Pages/default.aspx or go and get another job for a hopefully better employer.

Hang in there mate and I hope your'e back at work soon.

Doug.b · « **Reply #16 on:** February 08, 2011, 08:08:45 AM »

Quote from: 73bubba on February 07, 2011, 07:42:26 PM

Hi Mark

I look after HR for a civil construction company of 86 employees, if you take a look at the Fair Work Act 2009 (which every employer is legaly required to make available for each and every employee) it states:

In the absence of any lawful right to stand down an employee arising under an employment contract or enterprise agreement, the Fair Work Act 2009 (Cth) provides a default right for an employer to stand down employees for a certain period. The effect of standing down an employee is that the employer is not required to make payments to the employee for that period. The Fair Work Act 2009 (Cth) right to stand down arises when an employee cannot usefully be employed during a period of time because of one or more of the following circumstances:

•industrial action (other than industrial action organised or engaged in by the employer);
•a breakdown of machinery or equipment, provided that the employer cannot reasonably be held responsible for the breakdown (this applies also to a breakdown of machinery of a third party supplier)
•a stoppage of work for any cause for which the employer cannot reasonably be held responsible (for example a flash flood which prevents employees from entering their work premises).

An employer can only exercise a Fair Work Act 2009 (Cth) right to stand down an employee if they cannot be usefully employed. If an employer could obtain some benefit or value from work performed by an employee then the employer will not be able to stand down that employee.

An employee is not taken to be stood down under the Fair Work Act 2009 (Cth) provisions during a period which the employee is taking paid or unpaid leave that is authorised by the employer or is otherwise authorised to be absent from his or her employment.

Where an employer stands down an employee the employee’s continuity of service is not affected and service-based entitlements such as annual leave or long service leave continue to accrue during the stand down period.

Hope this clears it up for you

Brett

This is correct.
Times like these show the true colours of your boss and I bet he puts his hand out for the flood relief money as well.
Being a union organiser I would contact your union and get them involved.
As they say their is nine ways to skin a cat!!!!!!!!!!

Estelle · « **Reply #17 on:** February 08, 2011, 08:35:38 AM »

They may have made the ~$100k from previous effort, and they probably will not make any from the days the site was shutdown. Swings and roundabouts. May take a few days for the business to get up to speed again as well.

On another note, someone mentioned losing sick leave (and all the associated money) when leaving a company. Our site closed and I lost over 18 months of sick leave. It is there as insurance. I was lucky I didn't need to use it. Still hurt though. Others had more sick leave than I up their sleeve.

Barry G · « **Reply #18 on:** February 08, 2011, 08:46:20 AM »

Given that most employers of any reasonable size take out insurance to manage their sick leave liabilities it is something that should be transferrable. After all, the insurance companies 're-insure' each other through a pool anyway.

D4D · « **Reply #19 on:** February 08, 2011, 08:48:31 AM »

Just before Howard was toppled by Kevin (gee that worked out well) he was about to bring in legislation that you could get paid out anything over 2 weeks. I had 80 odd days accrued

ap · « **Reply #20 on:** February 08, 2011, 08:53:57 AM »

By contrast our MD was actively encouraging our Brisbane (Southbank, West End and elsewhere including Ipswich) based people to do what they could to make things easier on themselves by working from home, travelling outside peak times etc.

He were also calling on people to help out with the recovery, not only in the initial stages but in the following weeks too, all on full pay. All he asked was that people worked out the logistics with their manager. He also pledged to match dollar for dollar any donations made by the employees (currently sitting just over $200k) and offered financial assistance to any employees directly affected by the flooding.

Sure I work for a big company so this perhaps makes things easier, but all companies have financial pressures on them. I just thought that it was a great response.

rotare · « **Reply #21 on:** February 08, 2011, 11:51:27 AM »

Quote

Flemo, the approach to sick you advocate is inequitable.
It is an entitlement, not a right, i.e. you are entitled to use it if sick, but don't have a right to bit if you are not. If you are sick then take the time off, if you aren't go to work.

Glad you wrote that Barry, you took the words right out of my mouth.

Quote

Got back to work this morning and found out that my employer (a large company 350+ employees) made money during this stand down (~$100k). Bit of a kick in the guts. I understand it's not their fault for the stand down but it's not ours either.

I don't see a problem with them making money whilst all/the majority/some of the employees were asked to take leave. Whilst your employer is still generating some type of income, isn't this good for you, the employee? Did you expect your employer to send all 350 employees home, but still pay everyone for two days worth of work...... when you weren't at work, or working from home? Have I missed something?

Quote

I think meeting half way would have been a good outcome

From the employers point of view, giving you the opportunity to take paid leave, for only 2 days, was possibly the compromise. Was it really such an inconvenience to you to take 2 days annual leave? From what you've written about your employer, I get the impression you don't have a good, harmonious working relationship.

McGirr · « **Reply #22 on:** February 08, 2011, 12:06:20 PM »

Like all of us I have worked in numerous jobs with some great emploers and some very average employers.

At the end of the day I have a job and I appreciate any one who takes the challenge of opening a business, taking a risk, the stress, the hassles and the benefit of creating jobs.They are entitled to make money.

Regarding sick and holiday leave it depends on the work place agreement and the state laws.

I am not begrudging any one complaining. But try and look at the big picture what we have been through and that you are employed.

Mark

RichardNT · « **Reply #23 on:** February 08, 2011, 12:11:48 PM »

So what about a fair days pay for a fair days work ?
For a company of about 350 workers the wages bill (with allowances for contributions/holiday pay/sick pay allowance etc) would be around $50,000 - $70,000 a day.

Boo Boo · « **Reply #24 on:** February 08, 2011, 01:42:33 PM »

I can only comment on what happened during Brisbane floods. As I work in the CBD and they were asking non essential workers to avoid the CBD my work said not to come in until the Monday, so that was three and a half days off. Basically we had no servers operating so couldn't do anything even if we came in. Work actually gave us leave without debit, therefore not having to use any recreation leave or long service etc. I am very lucky as in all instances the TC and Floods where we have offices, the Senior Management has always put us first.

Amanda

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Author Topic: Employers (Read 7938 times)