Does anyone know if an employer is obliged to point out to an employee that a benefit has been removed from their contract. My boss gave me a "continuation of employment" contact to sign, but holiday leave loading was left out and I signed it without realising.....and he did not tell me that it had been taken out.
I will call fair work on Friday but I may have to talk to my boss about this today.
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09-02-2012 07:28 #1
Posting here for traffic....a hr question
09-02-2012 07:37 #2
It's hard to say without seeing the contract. If the new one superseded the old one entirely then only the new one counts. But when continuing employment, usually it's much shorter and may change a few things but then there is a clause saying "all other terms from contract dated X stand".
What was yours?
09-02-2012 07:38 #3
Meant to add - no they are not legally obliged to point out changes. But legally and morally are different things!
We always do at our company.
09-02-2012 23:00 #4
Thanks KW! Thic contract supersedes the previous one.
I had emailed my boss asking if the omission was an oversight and he replied today saying that leave loading was left in my previous contract in error so this contract reflects the current position of the organisation and that I would be compensated in my weekly pay (wahoo, that should be enough for a coffee a week). I got the strong sense that had I not mentioned it, it would have been glossed over(another lady at work said she mentioned it to the book keeper and he said my boss had assured him he had spoken to me about it (a blatant lie). I emailed him again to ask it I would be paid out for all loading accrued over the year(I haven't ever had it paid to me despite it being in my contract) both used and unused, so I will be interested to see the response.
09-02-2012 23:10 #5
I don't think you would be entitled to be paid out for leave loading on unused/accrued leave.
Leave loading was implemented to provide for missed overtime opportunities/penalties that would have been worked while on annual leave.
If you are now being paid a higher hourly rate, then any leave loading is now incorporated into this rate.
When you take leave it is paid at the rate you earn when you take if, not at the rate you were paid when you accrued it.
09-02-2012 23:24 #6
Yeah, I know that but I wasn't given the opportunity to use my entitlement, so I figured I might as well ask....not really anything to lose, he already dislikes me and I have a point to prove about his underhanded tactics.
09-02-2012 23:52 #7
The Fair Work Act provides that annual leave loading IS paid out upon termination.
It's a funny thing - it was actually introduced back when the male breadwinner model of employment (ie: dad works full time, mum stays at home and raises kids) was dominant. One of the reasons for leave loading was actually to provide the 'ordinary family' with extra money while they were taking their annual holidays! Sounds old fashioned now!
But in answer to your question - alot of it depends on what kind of work you do. If you are employed under an Award or Enterprise Agreement, there will likely be provisions that state annual leave loading may not be incorporated into an hourly rate. Call the Fair Work Infoline to check this one.
10-02-2012 06:11 #8
They definitely don't have to pay out your loading but it can't hurt to ask.... Glad its all worked out for the most part anyway.
10-02-2012 14:46 #9
Section 90 of the Fair Work Act, ‘Payment for Annual Leave’ provides as follows
90(2) If, when the employment of an employee ends, the employee has a period of untaken annual leave, the employer must pay the employee the amount that would have been payable to the employee had the employee taken that period of leave.
This includes annual leave loading payable as it would be had the employee taken the period of leave.
The above section of the Act is part of the National Employment Standards, so therefore it does not matter that any other agreement might be silent on this point.
10-02-2012 15:16 #10
But she is not being terminated?
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