Employers who work flexibly with their employees could be liable for significant back payments. Unfortunately, trying to do the right thing by your employee may not be in your best interest in this inflexible industrial relations system.

Consider a manager and a permanent employee who work well together to get the job done. The manager:  

• Allows the employee to come in late and then finish late for family reasons.
• Allows the employee to take a day off and work those hours as extra hours on other days. 
• Allows the employee to work while eating their lunch so they can leave 30 minutes early to pick up the kids from school. 

The strict legal rule is that the employer and employee cannot make arrangements that are contrary to the Award. 

The strict legal rule is that the employer and employee cannot make arrangements that are contrary to the Award. 

So, in relation to the above this legally means:

• The employee should be docked for starting work late and paid overtime when finishing late.
• The employee should lose a day’s pay for not coming in and be paid overtime rates when working those hours on other days. This may include paid overtime meal breaks. 
• The employee should receive penalty rates to the end of the shift if they miss getting a lunch break.

So, if the work relationship breaks down or the Fair Work Ombudsman gets involved who is exposed here? 

You - the employer.

Even though you have allowed the above for the benefit of the employee, YOU as the employer, have breached the Award. The employee carries no risk or financial liability.

It is unfair to write deficient and inflexible Awards and expect employers to be lawyers and understand the finer points of employment and industrial relations law.

Neither is it fair for employees be forced into casual employment to get some degree of flexibility as outlined in the above case.

In some limited circumstances it is possible to make Award compliant arrangements to suit the above.

With increased Government talk about ‘criminalising wage theft’ employers must be careful about how they allow such flexible work arrangements with their employees which may result in an Award breach and back payments.

Give me a call to talk through your current arrangements. I can assist by auditing your current working arrangements as well as examine the best way to work within the confines of the Award or Enterprise Agreement.

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Kind Regards
Michael Schmidt
M 0438 129 728
[email protected]
www.hunteremployeerelations.com.au

Industrial Relations - Employment Law - Workplace Performance