My employee is on a salary so the award doesn’t matter right?
It is a really common misbelief that if your worker is on a salary then you as the employee doesn’t need to worry too much about the award. Usually I get this question because of a genuine misconception or misunderstanding of the law rather than an employer trying to get away with something. The truth is that the Fair Work legislation is a mine field of rights and responsibilities that even the savviest employer will get their eyebrows singed once and a while.
I think this question is best answered against an award. I am going to use a really common one the modern award for retail employees called the General Retail Industry Award 2010 [MA000004].
This award states that there is some flexibility in the award, this means that an employer and employee can come to an agreement that must be in writing to change certain conditions of the award. If you a mad enough to venture into the award you will find under Part 7 that this includes pay. The tricky thing is, that under this Part if you read on it states that the new agreement
“Must result in the employee being better off overall at the time the agreement is made than the employee would have been if no individual flexibility agreement had been agreed to”
That is just legal speak for: you can’t change the conditions unless your employee is better off overall then he/she would have been if the change had not been made
It is also important to understand that if there is an issue with the pay and an employee has been underpaid then they have 6 years to recover that money. It might not happen the moment they leave but consider the possibility that their financial position changes and a few thousand dollars is looking pretty good.
If you think that you are being underpaid or you think that your employment contract has placed your staff in positions worse off than they would have been if the agreement was not entered into then we can help. Just give us a call and we will see what we can do.
Sources from Fair Work Ombudsman
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