Consult an Employment Lawyer For Issues Regarding Flexible Work Hours

Two brothers worked as painters for a hospital. For eight years, they enjoyed a flexible work arrangement where they reported for work from 6:30 am until 2:30 pm. This work arrangement left them time to pick up their young children from school and bring them home.

The hospital is one of the busiest hospitals in its district and to boost their operational efficiency and to correct a $8.2 million deficit, the hospital administration gave the painters one year’s notice before ordering them to revert to the regular working hours of 7:00 am to 3:30 pm. The hospital administration urged the painters to make alternate arrangements for their children as after the twelve-month period as no further extensions would be granted.The scheme to revert to ordinary work hours was part of the “whole of hospital approach” to improving hospital services. The hospital had a long-standing policy of allowing flexible work arrangements that were mutually beneficial for both the hospital and the employees. Also, the brothers were classified as employed under the Public Health Service Employees Skilled Trades Award that provided that their ordinary hours of work be for eight hours daily, Monday to Friday between 6:00 am and 6:00 pm. Thus, the order to work from 7:00 am- 3:30 pm was allowed under the award.

Near the end of the twelve-month notice period, the brothers asked for a review of their flexible work arrangement. The brothers argued that the request for flexible work hours were a small accommodation which would not impose undue hardship on the hospital, but if their request for flexible working hours was not accommodated, it would impose hardship on their family as they could not afford after-school child care.

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The Union to which the painters belonged then wrote to the hospital on behalf of the painters, notifying them that they had lodged a dispute concerning the issue of the painters’ working hours with the Industrial Relations Commission of New South Wales. The Union asked the Commission for orders to allow the painters to continue working under the flexible work arrangement until their children finished primary school sometime at the end of the school year 2018-2019. The Union argued that forcing the painters to work until 3:30 pm instead of 2:30 pm amounted to discrimination against them as family carers and prevented them achieving and maintaining a work/life balance. Further, the painters had low income and the cost of childcare would put financial pressure on their families. Also, the painters had enjoyed flexible work hours for years without any negative impact on their productivity, efficiency, or work safety.

On the other hand, the hospital argued that it had the right to exercise prerogatives to manage its operations. The return to ordinary hours would improve supervision, communication, and coordination within the entire Engineering Department. Also, the hospital did not act unjustly or unfairly by giving the painters twelve months to make alternate arrangements before imposing the order for them to return to their ordinary work hours.

The Commission found that by requiring the painters to report during ordinary work hours, it was implementing a more efficient and accountable management of maintenance tasks. The hospital extensively consulted with the Union prior to implementing the return to ordinary working hours and there was no award impediment to the change in work hours. The Union was unable to show that the hospital’s requirement to return to ordinary working hours would be unfair, unjust, or unreasonable. The Union’s application was dismissed and the painters were ordered to report for work at 7 am until 3:30 pm beginning January 2017

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Unlawful termination lawyers answer the question

A certified public accountant worked as an employed professional under an employment agreement. The CPA received around$115,000 in annual income. As a professional, he did not perform work within a specified number of hours a day but worked to achieve the billable hours under his contract.

The CPA produced the employment agreement where it stated that office hours at the company were from 9:00 am until 5:30 pm. However, the same employment agreement provided that the hours of work were flexible and that the CPA may be called to perform work outside the normal office hours.

It was clear that there was no agreement between the CPA and the employer that he would be paid overtime for all the effort performed beyond the normal work hours or that he was to be allowed “time off in lieu” of the hours worked outside the normal work hours.

The CPA first asked for “time off in lieu” at least one year prior to resigning from his employment. Two years after he resigned, he brought this claim for payment of a sum of money equivalent to the “time off in lieu”. The court found that there was no basis for the claim and dismissed it.

From the facts of this case, it can be gleaned that for employed professionals whose employment agreements provide for flexible work hours, there is a need for a separate agreement providing for payment of overtime pay or payment of “time off in lieu” of effort performed beyond the normal hours. Without an agreement for overtime pay or “time off in lieu” then a claim for payment for effort performed beyond normal working hours does not have any basis.

The ruling would have been different had the employee not been a professional and had his employment agreement not provided for flexible working hours. Generally, employer may request employees to work overtime when the overtime effort is reasonable. Overtime work must not pose a risk to the health and safety of the employee and must not encroach on their family responsibilities. The employee must receive payment for overtime at a higher rate than work performed during normal working hours. Also, the employee must be given enough notice before requiring them to work overtime. An employee can refuse to work overtime if the request is unreasonable.

When an employer terminates the employment of a worker for his or her refusal to work overtime, the employee may make an application for unlawful termination or for an adverse action. The employee can claim that consequent to exercising his or her workplace right to refuse to effort overtime, he or she was dismissed from employment. The burden of proving that the request for overtime work was not “unreasonable” rests on the employer. Thus, employers should exercise care and caution in requiring their employees to render overtime work.

To overcome the burden of proving that the request for overtime work is reasonable, the employer must provide evidence that there is a relevant business need for the requirement to effort overtime and the employer must make enquiries on the personal circumstance of their employees to ensure that they will not be prejudiced by a request for overtime work.

Employment Legal Advice: FWC Rules No Redundancy Exists if Due Only to Salary Cut

A pay cut rejected by workers does not equate to a valid redundancy, the Fair Work Commission recently ruled.

In Mr Leon Mallard; Mr Steven Bolton; Mr Bernard Stonehouse; Mr Jason Wood v Parabellum International Pty Ltd T/A Parabellum International [2017] FWC 2531 (15 May 2017), the Fair Work Commission ruled that jobs of four workers, all of whom worked in emergency services, were not genuinely rendered rendundant on the basis of a pay cut

The four emergency service workers were employed by Parabellum, which supplies the services to Chevron. Due to a reduction in contract prices by Chevron, Parabellum faced significant financial challenges and attempted to reduce costs specifically the salaries of the workforce.

In the termination letters, Parabellum informed the workers that their jobs were made redundant, yet previously offered the same job for a reduced salary. Seeing as the workers rejected the job offer with lower pay, their employment was terminated.

The Fair Work Commission reviewed Section 389 of the Fair Work Act, which defined what a genuine redundancy is. Deputy President Bull stated that a genuine redundancy is “not restricted to whether an employee’s job is no longer required”.

Parabellum urged the Commission to take a wide interpretation of the provision, alleging that the “person’s job” includes all contractual arrangements the employer and employee entered into by contract, which includes employee remuneration. Parabellum contended that when the pay in an employee’s job is varied, and the role is no longer required to be performed at the original salary, then the job is no longer required to be performed by anyone, regardless if the duties and responsibilities are the same as those in the original job.

The Fair Work Commission examined relevant case law, specifically the definition of Bray CJ in R v Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-Op Ltd (1977) 16 SASR 6, where redundancy was defined as the situation when “the employer no longer desires to have it performed by anyone.” Reference was also made to the definition of the word “job”, and it was noted that many of the definitions focused on the tasks, work, results, of a job, and none of them referenced the importance of the salary as an essential part of the definition of a job.

The “person’s job to be performed” under the Fair Work Act are, per Deputy President Bull, “the functions, duties and responsibilities associated with the job”. Remuneration then would be “the value placed on performing the job by the employer”, and variations in salaries “does not equate to the employer no longer requiring ‘the job’ to be performed”.

Therefore, a redundant job is one where the functions, duties and responsibilities of the job are determined by the employer as superfluous to the current needs. However, as the Commission noted, when Parabellum hired others to do the job at the lower pay, and even offered the same job at the lower salary to the four workers, then the jobs were not genuinely redundant.

Lessons for Employees – Seek Proper Employment Legal Advice

Knowing your rights is key to understanding how employment law works for you. Employees should, as in this case, ascertain the nature of the proposed redundancy, and logically, if the same work is required by the employer, then it is not a real redundancy.

Contact us for employment legal advice in Perth, Western Australia.

Federal Court Awards Hospital Worker Long-Overdue Overtime Payments WithInterest By Employment Law Experts

In Polan v Goulburn Valley Health (No 2) [2017] FCA 30, the Federal Court awarded a hospital worker $27,869.28 in unpaid overtime, plus interest. The hospital worker hadclaimed breaches of enterprise agreements against her employer, Goulburn Valley Health, a large regional hospital. She had worked for the hospital for approximately 17 years before resigning, managing rosters of junior doctors, receiving calls from junior doctors and completing other administrative tasks.

unfair-dismissal

The Employee Worked On-Call

As part of her role, the hospital worker was required to make and receive calls to and from junior doctors whilst she was on-call at home. This was an ongoing expectation on the hospital worker, rather than a specific request by Goulburn Valley Health on each occasion.

he Employee’s Entitlement to Additional Remuneration

One of the arguments before the Court was whether the hospital worker’s duty to make and receive calls whilst at home could be considered “recalls to duty” under her enterprise agreements. If so, she would be entitled to additional remuneration.

It was held that, as the verb “recall” indicates a conscious decision by an employer to require an employee to perform particular duties outside ordinary hours, this was not a situation with “recalls to duty”. However, the hospital worker was still entitled to additional remuneration in the form of overtime.

Entitlement toOvertime

Unlike entitlements for “recalls to duty”, additional remuneration for overtime is not confined to the situation of an employer specifically making a direction to an employee to perform duties on a specific occasion. Further, the enterprise agreements in the present case allowed for the hospital worker to claim overtime payments. Therefore, as the hospital worker was impliedly authorised by Goulburn Valley Health under an ongoing understanding that she would undertake additional work outside of ordinary hours, she was entitled to additional remuneration for that overtime.

Calculation of Overtime

The hospital worker’s entitlement to overtime payments spanned several of her 17 years of service. In such a situation, the Court was faced with the problem of quantifying her entitlement when evidence of actual hours worked and tasks completed were scarce.

The hospital worker was able to provide her Telstra phone bills, but she did not have a lot of evidence to prove the dates and times of the other work she completed. The hospital worker’s role was also to take time to consider which doctors to call, to organise doctors with their most suitable departments and to complete other administrative tasks. The hospital worker also spent a considerable amount of her time waiting between phone calls, waiting for doctors to get back to her, and this work was not reflected in the phone bills.

In the end, despite the lack of detailed evidence, the Court allowed the hospital worker’s total entitlement based on the phone bills to be grossed up by 50% to cover the other overtime work.However, this was just a guestimate.

Lessons to be Learnt

Employers need to comply with the applicable enterprise agreements. This is especially the case for overtime. It may be considered normal for a hospital worker to be on-call, and everyone at the hospital may work additional hours, but that employee can still be entitled to overtime payments.

Meanwhile, employees need to be careful too. In case an employee wishes to make a claim in the future, it helps if the employee has kept records of their service, especially dates and times worked.

A Case Of Where An Employee Has An Adverse Action Claims

MKI Legal recently acted for a client called John (not his real name). Due to confidentiality reasons we cannot disclose his real name. John had a good case to make a General Protections application to the Fair Work Commission (resulting from adverse action). He was a part owner in a Panel and Paint business and worked in the business as a Panel Beater and Spray Painter.

 John’s case

John originally started the business with two friends, and they later expanded into a shop across the road from the location where they established their business. John worked long hours and was in charge of the day to day running of both businesses due to his many years of experience in the industry.

Initially there was a verbal agreement between John and his friends where they asserted that John had a one third share in the business.

One day John broke his foot at work and was required to be off work for a long period of time to recover. He was off work for 4 months in total, while he underwent rehabilitation. At that time, he also made a claim for worker’s compensation. When he was able to walk again, John returned to work.

When John returned to work he was only required to undertake light duties. John had planned to gradually return to his role as a Panel Beater, but his business partners directed him to only move cars around the yard. John was happy to do this, but in order for him to rehabilitate properly it was required that he take on a more active role.

John continued to do as he was directed by the other business partners. One day John came into work and was confronted by his business partners. They told him that they wanted to have a meeting with him. That afternoon John met with them and they told him that they no longer wanted to do business with him. They said that John was unfit to be on site, and that they would tell Workcover that John was not fit to be on site. They also made baseless accusations against John that he was bullying other staff members. They told John that his employment was terminated and that he was not allowed to return to the site.

They also suggested that they could either buy out John’s shares in the company, or he could buy them out. John offered them a sum of money for his share in the company but they refused, stating that John’s share was not worth anything.

Why John could make a general protections claim

 John had the right to make a general protections claim to the Fair Work Commission. Our adverse action lawyers state there were a couple of reasons why John could do this. These are:

  1. Temporary absence from work: John was temporarily absent from work due to his injury, as he needed time to recover. If one of the reasons for the termination of John’s employment was the fact that he was off work for a period of time because of his injury, then he would be protected by the general protections provisions.
  2. Exercising a workplace right: John exercised a workplace right by making a worker’s compensation claim. If this was one of the reasons for his dismissal, then he is covered by the general protections provisions.

John would be entitled to compensation for his dismissal if his general protections claim was successful.