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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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I have just resigned from my fixed term permanent position

Customer Question

I have just resigned from my fixed term permanent position and they are refusing to pay 209.75 hours over-time worked. Please advise what I am entitled to as I don't see 209.75hours over 7weeks to be 'reasonable additional overtime' with no payment.
Details from my letter of employment are below:
- "require you to work ordinary hours of 38 per week on a permanent, full-time basis
- Pay rate $2,500 per fortnight (exclusive of 9.5% superannuation).
- Due to the short-term nature of this operation, in addition to your ordinary hours, you will be required to work reasonable additional hours to perform your role... These hours will be in addition to your ordinary hours of work... Your rate of pay includes full compensation for all hours worked, including all reasonable additional hours that are required to be worked by you to fulfill your duties under this Agreement... You acknowledge and agree that your rate of remuneration under this Agreement is in full compensation for the minimum wage and all penalties, allowances, overtime and penalty rates which you could otherwise be entitled to, now or in the future.
- The Company is of the view that no Modern Award applies to your employment. However, If an industrial instrument (such as a workplace agreement or an award) is found to apply to your employment, your remuneration set out above, compensates you for all work performed, including but not limited to, any overtime, loadings, penalty rates, allowances and any other entitlement which may be due to you under the industrial instrument, including any annual wage reviews (“Minimum Entitlements”). Any entitlement under the industrial instrument will be calculated by reference to the applicable base rate of pay in the industrial instrument. The Minimum Entitlements do not form part of this agreement.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

Have you got it all documented?

Customer: replied 1 year ago.
I have all hours diarised along with copies of first & last email sent each day to demonstrate times worked.
I also have a monthly planner and To Do List with workload info.
Expert:  Leon replied 1 year ago.

Good Afternoon

How much is the total amount owing?

Customer: replied 1 year ago.
If it is worked out on just my standard pay rate, not including any double time etc then it would be $6,898.68 owing
Customer: replied 1 year ago.
I'm worried the clause below in my letter of employment is classed as a 'set-off' and if this would effect them paying it?Application of Industrial Instrument
The Company is of the view that no Modern Award applies to your employment. However, If an industrial instrument (such as a workplace agreement or an award) is found to apply to your employment, your remuneration set out above, compensates you for all work performed over each of the casual First and Third Periods, and the Fixed Term Second Period, including but not limited to, any overtime, loadings, penalty rates, allowances and any other entitlement which may be due to you under the industrial instrument, including any annual wage reviews (“Minimum Entitlements”). Any entitlement under the industrial instrument will be calculated by reference to the applicable base rate of pay in the industrial instrument. The Minimum Entitlements do not form part of this agreement.
Expert:  Leon replied 1 year ago.

If there is an award that may apply then you need to read it.

You can contact the Fair Work Ombudsman and they will advise you if there is an award or industrial instrument that covers you. If there is you download it and look at the entitlements under the agreement.

Assuming there is one, you can then look at what that says about overtime and pay rates and work out what you should have been paid in accordance to that.

You then secure your position and decide what is best for you to do.

You have time to sue them and I believe you have 3 years.

https://www.fwc.gov.au/

Do not panic about time you do your research and once you know about the award you can then proceed in your best interests.

Being in WA you may also want to check with the Industrial relations commission WA for the possible award

http://www.wairc.wa.gov.au/index.php/en/

If your entitlements under the award are better, you can then argue they have underpaid you.

I hope this all makes sense and is of assistance.