Know­ing em­ploy­ees’ rights over pay

Kapi-Mana News - - CONVERSATIONS - ALAN KNOWSLEY

The is the sec­ond ar­ti­cle deal­ing with re­cent changes to em­ploy­ment laws.

CAN­CEL­LA­TION OF SHIFTS

If an em­ployee is re­quired to un­der­take shift work, the em­ployer must not can­cel a shift un­less the em­ploy­ment agree­ment stip­u­lates a rea­son­able no­tice pe­riod or rea­son­able com­pen­sa­tion for can­cel­la­tion with­out the re­quired no­tice.

The pe­riod of no­tice is to be de­ter­mined by rel­e­vant fac­tors. They in­clude the na­ture of the busi­ness and the abil­ity to con­trol or fore­see cir­cum­stances giv­ing rise to can­cel­la­tion, the na­ture of the em­ployee’s work and the likely ef­fect of can­cel­la­tion on the em­ployee, the na­ture of the em­ploy­ment ar­range­ment, agreed hours and guar­an­teed hours.

The com­pen­sa­tion is de­ter­mined by such fac­tors as the pe­riod of no­tice, what re­mu­ner­a­tion would have been paid (if they had worked the shift) and costs the em­ployee in­curred in pre­par­ing for the shift.

The em­ployee will be en­ti­tled to full pay if the shift is can­celled and the agree­ment does not com- ply, the shift is can­celled but no no­ti­fi­ca­tion un­til the start of the shift, or the shift is can­celled part­way through the shift.

SEC­ONDARY EM­PLOY­MENT

An em­ployer can­not pro­hibit an em­ployee tak­ing on sec­ondary em­ploy­ment un­less there are gen­uine grounds for the pro­hi­bi­tion and those rea­sons are in the em­ploy­ment agree­ment.

The gen­uine rea­sons can be pro­tect­ing an em­ployer’s rights (eg com­mer­cially sen­si­tive in­for­ma­tion, in­tel­lec­tual prop­erty, com­mer­cial rep­u­ta­tion) and pre­vent­ing con­flicts of in­ter­est that can­not be done with­out the pro­hi­bi­tion of sec­ondary em­ploy­ment.

In ad­di­tion, the re­stric­tions must not be greater than nec­es­sary.

Le­gal Mat­ters

WAGES PRO­TEC­TION ACT

Un­til April 1, an em­ployer can make de­duc­tions from pay­ments to an em­ployee with the em­ployee’s writ­ten con­sent or at their writ­ten re­quest (plus re­cov­ery of over­paid wages).

The new law al­lows de­duc­tions based on spe­cific writ­ten con­sent and gen­eral con­sent in an em­ploy­ment agree­ment. How­ever, an em­ployer will not be able to make spe­cific de­duc­tions on the ba­sis of a gen­eral clause in the em­ploy­ment agree­ment with­out first con­sult­ing the worker.

Be­cause em­ploy­ees can give no­tice to re­voke a writ­ten con­sent (in­clud­ing one in an em­ploy­ment agree­ment) at any time, the re­quire­ment to con­sult could trig- ger a with­drawal of con­sent.

Em­ploy­ers must ac­tion the with­drawal of con­sent as soon as prac­ti­ca­ble, which will pre­vent the de­duc­tion of any pay­ment the em­ployee does not still agree to (de­spite prior agree­ment) with the ex­cep­tion of over­paid wages (in some cir­cum­stances).

HOL­I­DAYS ACT

The new law re­quires the record­ing of hours worked each day in the pay pe­riod and the amount paid for those hours.

If the em­ployer and em­ployee agree on the hours to be worked and the em­ployee works those hours, then it is suf­fi­cient to record those in the wage and time records or em­ploy­ment agree­ment or in the ros­ter record nor­mally used in the work­place. Any ad­di­tional hours worked must also be recorded.

PHOTO: FAIRFAX

It’s im­por­tant to know ex­actly what pay you are en­ti­tled to.

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