I have a part-time employee whose contract stipulates that they will perform 30 ordinary hours of work per week. However, in practise their hours vary. They have agreed to this arrangement verbally. How do I treat public holidays for this employee when their hours vary?
There is likely to be uncertainty and breaches of the law when a permanent, part-time employee works varying hours in a manner which contradicts the contract or industrial instruments that apply to them.
To begin, section 116 of the Fair Work Act 2009(the FW Act) requires that an employee who is absent from her or his employment on a day or part-day that is a public holiday receive payment for their ordinary hours of work on that day. This creates an obligation on an employer and employee to reach clear agreement about the days when an employee will be regarded as having ordinary hours of work.
An employer who refuses to establish ordinary hours of work for a permanent employee will not be able to escape the obligation to pay appropriate amounts for absences on a public holiday. A refusal to make such payments runs the risk of breaching the National Employment Standards.
Members who have award/agreement free permanent employees who wish to establish flexible working arrangements while properly accounting for their obligations under section 116 of the FW Actshould seek advice from the Ai Group Workplace Advice Line (call 1300 55 66 77)about necessary accompanying contractual arrangements.
There are, of course, many other obligations under the FW Act which are also dependent on clear agreement about ordinary hours.
Employers also need to be aware of the various provisions within modern awards that will normally be breached when working permanent, part-time staff in the manner described above.
Under many modern awards, the engagement of a part-time employee requires agreement in writing on factors such as:
Modern awards will also often require that the employer and employee agree to any variations to the hours of work in writing. Failure to abide by these requirements will be a breach of the modern award and, therefore, a breach of the FW Act.
This means that modern awards normally oblige employers to establish a clear pattern of working hours which in turn allows an employer to determine whether an employee would have had ordinary hours of work on a particular day. If that day is a public holiday, then the employer can identify whether the employee would be entitled to public holiday payment for that day. The confusion that results when a clear pattern of working hours is not established is a key reason that it is mandatory to institute such a pattern.
Employers need to be careful about undertaking arrangements which are agreed to verbally but which contradict written industrial instruments such as enterprise agreements or employment contracts (or, for that matter, modern awards and the FW Act).
An employee’s agreement to arrangements which undercut legislative entitlements or entitlements under enterprise agreements and modern awards cannot be relied upon. In this way, an employer will be breaching those industrial instruments if they are acting in a manner contradictory to them, regardless of whether they have an employee’s consent.
Moreover, a verbal agreement which contradicts written terms in an employment contract is likely to constitute a breach of that contract and therefore to expose an employer to damages or other contractual remedies.
Employers who wish to engage workers with greater flexibility should consider engaging casual staff as this may allow the employer to offer the staff member work on an ad hoc basis or only as required.
The specific requirements for engaging permanent, part-time staff vary across modern awards, enterprise agreements and employment contracts. It is important for employers to understand the relevant industrial instruments that apply toworkers and their terms.
Please call the Ai Group Workplace Advice Line on 1300 55 66 77 to discuss this issue or any other workplace relations matters further.
