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435 posts

Ultimate Geek
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Topic # 189005 13-Dec-2015 15:48
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Hello,

I have a legal question I'm hoping somewhere on here will have experience with or just a bit more legal understanding than myself. 

Can an employer "contract out" of sick pay? (make a clause in the employment contract that states the employee is not entitled to sick pay)

A little bit more background.

I'm a student who works part time at a large retailer. I've been working there for over 3 years now working the same hours for the entire duration (plus extra holiday hours, and less the occasional day off for holidays/sick/exams, etc). My contract is a "casual" contract and has a clause which states I am not entitled to sick pay or lieu days. (I've since fought for my lieu days which I'm happy about thanks to ANZAC day which fell on my usually worked Saturday).

According to the legislation around sick pay, the requirements for non-regular working employees is that you have to have been working for at least 6 months and be working 10 hours/week or 40 hours/month. I work just over 40 hours a month and as I said, I've been there for over 3 years now.

Just like the lieu days, am I entitled to sick pay regardless of what my contract says? Or when I signed that contract did I sign away my right to sick pay?

Cheers everyone.

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  Reply # 1449692 13-Dec-2015 15:54
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Under the Holidays Act 2003 all employees are entitled to a minimum of five days paid sick leave a year after the first six months of continuous employment and an additional five days paid sick leave after each subsequent 12 month period. 

 

The Holidays Act also provides sick leave entitlements after six months to employees whose employment is not continuous (including casual employees) if, during those six months, they have worked: 

        1.  An average of at least 10 hours per week, and 
        2.  At least one hour per week or 40 hours per month.

Sorted, it appears



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Ultimate Geek
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  Reply # 1449693 13-Dec-2015 15:57
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tdgeek: Under the Holidays Act 2003 all employees are entitled to a minimum of five days paid sick leave a year after the first six months of continuous employment and an additional five days paid sick leave after each subsequent 12 month period.  The Holidays Act also provides sick leave entitlements after six months to employees whose employment is not continuous (including casual employees) if, during those six months, they have worked: 

        1.  An average of at least 10 hours per week, and 
        2.  At least one hour per week or 40 hours per month.

Sorted, it appears


Thanks for the response, I've had a good read of all the employment related legislation. But my core question is, can my employer contract out of those obligations? I signed a contract, can that contract overrule the default entitlements?

Cheers.

 
 
 
 


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  Reply # 1449697 13-Dec-2015 16:02
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Best bet is to get a printout of the section of the legislation about sick days, maybe highlight the bits that you fall in to and hand it to your employer. Keep it civil, suggest that the employer not take your word for it and check it out for themselves.

And failing that, get the labour department involved, I would not mention right away that you are prepared to get the labour dept. involved, doing that right off the bat could sour the employment relationship.

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Ultimate Geek
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  Reply # 1449698 13-Dec-2015 16:07
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They can't contract out of it, but is sounds like when your first signed up, you signed up to a casual contract,which generally you would work less than the required amountto be eligible for sick leave. Going by what you have said , you should have been moved to a part time contract as you now have set shifts and are not longer casual, pretty much once you have set shifts you are no longer casual.
Most large organizations have a HR department that you can talk to, I suggest giving them a call if your manager won't.

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  Reply # 1449699 13-Dec-2015 16:08
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AidanS:
tdgeek: Under the Holidays Act 2003 all employees are entitled to a minimum of five days paid sick leave a year after the first six months of continuous employment and an additional five days paid sick leave after each subsequent 12 month period.  The Holidays Act also provides sick leave entitlements after six months to employees whose employment is not continuous (including casual employees) if, during those six months, they have worked: 

        1.  An average of at least 10 hours per week, and 
        2.  At least one hour per week or 40 hours per month.

Sorted, it appears


Thanks for the response, I've had a good read of all the employment related legislation. But my core question is, can my employer contract out of those obligations? I signed a contract, can that contract overrule the default entitlements?

Cheers.


Under the Employment Relations Act, every employee has a written employment agreement, which can be individual or collective. Where current employment agreements do not specifically outline holiday and leave provisions, or if they refer to leave in general terms, the entitlements under the Holidays Act 2003, as amended by the Holidays Amendment Act 2010, apply unless a new agreement with better provisions has been negotiated and agreed.

This implies that the Holidays Act is a legal minimum. AFAIK, these types of Acts aren't there to tell employers what the requirements are, they are there to provide a minimum of requirements.

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  Reply # 1449700 13-Dec-2015 16:08
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AidanS:
tdgeek: Under the Holidays Act 2003 all employees are entitled to a minimum of five days paid sick leave a year after the first six months of continuous employment and an additional five days paid sick leave after each subsequent 12 month period.  The Holidays Act also provides sick leave entitlements after six months to employees whose employment is not continuous (including casual employees) if, during those six months, they have worked: 

        1.  An average of at least 10 hours per week, and 
        2.  At least one hour per week or 40 hours per month.

Sorted, it appears


Thanks for the response, I've had a good read of all the employment related legislation. But my core question is, can my employer contract out of those obligations? I signed a contract, can that contract overrule the default entitlements?

Cheers.


Not sure if it can be contracted out of, if it is able to by law remember it's still a contract, you don't have to agree to it, but you can use it as leverage for changes you want, maybe a 20% pay rise to offset the loss of sick days? guaranteed minimum hours of work per month?

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  Reply # 1449701 13-Dec-2015 16:09
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throbb: They can't contract out of it, but is sounds like when your first signed up, you signed up to a casual contract,which generally you would work less than the required amountto be eligible for sick leave. Going by what you have said , you should have been moved to a part time contract as you now have set shifts and are not longer casual, pretty much once you have set shifts you are no longer casual.


A bit like temps, where after a period, a temp defaults to permanent? In this case the issue is set hours?

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  Reply # 1449703 13-Dec-2015 16:16
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tdgeek: A bit like temps, where after a period, a temp defaults to permanent?


Whats the period for this to occur?

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  Reply # 1449705 13-Dec-2015 16:18
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Geese:
tdgeek: A bit like temps, where after a period, a temp defaults to permanent?


Whats the period for this to occur?


IIRC one year

Edit. 

 

Permanent contract

 

If no mention is made of how long you will work for, you have a permanent contract,

 

also known as a contract for an indefinite period.

 

When does your temporary contract change into a

 

permanent contract?

 

If you have a temporary contract, this can change automatically into a permanent one.

 

This is possible in the following situations:

 

 after three consecutive temporary employment contracts that have each time been

 

renewed directly or within three months of the previous one, the fourth contract

 

automatically becomes permanent;

 

 if, during your second or subsequent contract, the total duration exceeds 36

 

months, the contract is automatically converted into a permanent contract,

 

provided the period between contracts is no more than three months.

 

Note: if your first temporary contract is 36 months or more and your second

 

temporary contract is no longer than three months, then the second temporary

 

contract does not automatically change into a permanent one. If the new contract

 

exceeds this three-month limit, you have a right to a permanent contract.

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  Reply # 1449716 13-Dec-2015 16:33
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I would join the Union thats what they are there for and they will take the emotion out of it. I wouldn't suggest going to the Labour department.




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gzt

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  Reply # 1449720 13-Dec-2015 16:46
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Can an employer "contract out" of sick pay? (make a clause in the employment contract that states the employee is not entitled to sick pay)

The short answer is: Absolutely not.

gzt

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  Reply # 1449722 13-Dec-2015 16:56
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tdgeek: Under the Holidays Act 2003 all employees are entitled to a minimum of five days paid sick leave a year after the first six months of continuous employment and an additional five days paid sick leave after each subsequent 12 month period. 
The Holidays Act also provides sick leave entitlements after six months to employees whose employment is not continuous (including casual employees) if, during those six months, they have worked: 

        1.  An average of at least 10 hours per week, and 
        2.  At least one hour per week or 40 hours per month.

Sorted, it appears

Excellent summary. Additionally to that legal decisions have essentally shown that if it was not provided as it should have been as above then you are entitled to have that sorted out. Ie; pay credit for sick days you have taken in the past.

gzt

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  Reply # 1449730 13-Dec-2015 17:13
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I work just over 40 hours a month and as I said, I've been there for over 3 years now.

Off topic here but you also most likely qualify for holiday pay under the act. But I'm guessing you already know this part given your previous research..



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  Reply # 1449739 13-Dec-2015 17:49
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Thanks for all the responses guys!

I'm going to write a letter and see how things go. As I said before, when ANZAC day popped up on a Saturday a lot of the "casual" (my employer has no part time contracts, only full timers and casuals which are typically students) were legally entitled to that Saturday lieu day, as they work it every week, but the employer sent out an internal notice stating that casual staff only get the 1.5x pay rate and that's it.

I challenged it, and a few of us got lieu days. But most of the "casuals" (casual means regular weekend worker in 95% of cases in this company) were oblivious to their entitlements and trusted the information their employer was passing on to them (as anyone probably would!).

This sick day situation is now apparent to be the exact same thing. A tad disappointing considering this particular company has been an employer for 50+ years. Would be interesting to know how many $$$ they've saved from preying on the ignorance of students.


Onward
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  Reply # 1449749 13-Dec-2015 18:14
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With all things legal... get appropriate professional advice.

Personally I believe that legal obligations cannot be contracted away.




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 It's our only home, lets clean it up then...

 

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