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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4517
Experience:  Dip Law LPAB - Sydney based lawyer
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Recently moving up to junior management in the sales company

Resolved Question:

Recently moving up to junior management in the sales company I have been
a consultant with for 7 years, I would like to understand IFA's better. Is it proper to force junior sales reps to work 80+ hours a week with no renumeration except their "part time" 32 hours a week. Being told to move family matters/doctors appointments to "another time". Are the reps "better off" under an IFA , when all they earn is a $750 bonus every quarter. I am on an old contract, being paid 20% a month. The new contract seems unfair. Also, as reps, we work our contracted hours, is it right for management to reprimand reps if they choose not to work or work only half a day e.g sales being taken from their normal week (we do ALOT of weekend work) Cheers. Nev
Submitted: 11 months ago.
Category: Australia Law
Expert:  Patrick H. replied 11 months ago.
Sorry, but I'm not familiar with the term IFA?
Customer: replied 11 months ago.
My apologies. IFA "Individual Flexibility Agreement"
Expert:  Patrick H. replied 11 months ago.

The following legislative provision sets out the requirements for an IFA:

 

http://www.austlii.edu.au/au/legis/cth/consol_act/fwa2009114/s144.html

 

and the following guide explains how IFA's explains further in lay terms:

 

 

http://www.fairwork.gov.au/BestPracticeGuides/03-Use-of-individual-flexibility-arrangements.pdf

 

Notably they should not undermine minimum workplace rights and overall any arrangement should not leave workers worse off than if they were simply governed by ordinary employment rights. It is therefore utterly implausible that your IFA would entitle your employer to demand that you work 80 hours a week without being compensated for the work you are performing.

 

You should ask for a copy of your IFA and see what it says about your pay and hours of work. If it doesn't say anything you need to look at your award for the base conditions relating to hours and pay. Whilst some occasional excess hours unpaid may be acceptable within reason, the general position under the Fair Work Act is that employees cannot be asked to work more than 38 hours, and whilst an IFA may vary this, it would have to be accompanied by compensation to ensure the IFA meets the requirement that a worker won't be worse off overall.

 

If after reviewing your IFA it appears your employer is not entitled to force you to work the extended hours they are demanding. You should therefore discuss with your employers whether they intend to pay you for excess hours and if not, refuse to do more than appears reasonable. If they take action against you for refusing then you likely have grounds for a general protection claim or an unfair dismissal (if they sack you). Strict time limits apply, particularly if you are sacked (you have only 21 days from the date of dismissal), so you need to act quickly.

 

You can find out more about general protection claims and unfair dismissal claims here:

 

http://www.fwc.gov.au/

 

and

 

http://www.fairwork.gov.au/Pages/default.aspx

 

I trust the above assists.

Please rate my answer so I can be paid by the website operator.

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Thank you and good luck.

Patrick

Expert:  Patrick H. replied 11 months ago.
I note that you have not rated my answer.

I have tried to assist you and it appears I have answered your question comprehensively. It is only fair that you now rate my answer so that I can be paid, by Just Answer, for my time and effort. I am only paid if you rate my answer positively.

Please note it is the website operator that pays me out of the funds you previously paid. It costs you nothing extra to rate my answer.

Thanks in advance,

Patrick.
Customer: replied 11 months ago.
Hi Patrick, thanks for the answer. I did forget to mention in the contract it states that "overtime and weekend work is offered to employees as an opportunity to earn "commission" " . Does this negate anything we could legally claim against the firm ? For instance today is Saturday, I have been in the office since 9am to 5pm, selling 1300$ on the phone, earning $183 in "commission", which is never seen as our fortnightly pay us considered a "commission advance" - I have reps who have been surviving on "advances" for two years and if / when they resign to company bills them the difference of turnover to "commission" thanks
Expert:  replied 11 months ago.
Well it may be if it is included in the IFA and IF they actually pay you commissions which effectively compensate you for the extra hours.

It does sound like your arrangement is somewhat complex, however, and if you have similar arrangements to other workers, I would suggest some of you team up and collectively pay for a specialist employment lawyer to review your IFA arrangements in detail. Whilst I have some expertise with employment law, I am not a specialist, and it is beyond the scope of a service such as this to review your contractual arrangements in detail. I definitely sense your employer may be well and truly out of line and that it would be worthwhile paying a specialist lawyer to look at the arrangement.

Based on what you have described it appears to me the employer is either imposing conditions that are not properly allowed under an IFA or is simply not properly honouring its obligations under the IFA.

I trust the above assists.

Please rate my answer so I can be paid by the website operator.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 4517
Experience: Dip Law LPAB - Sydney based lawyer
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