Denied employment for not giving coached responses to voluntary questions

[Safez]

Hello all,

Had an interesting experience the other day, not sure if there is any breach of policy here.

Applied for some casual work and after an excellent interview and subsequent work trial (comments including an exhuberant "can you start right now" and praise after the work trial itself) I was offered a position with the company and given a shift the next day.

When offered the position I was asked to come in and grab an employment pack and fill out some "payroll questions". This was a pressing issue and was insisted I complete this work before I start my shift the next day.

The place has an enterprise bargaining agreement in place (They presented me with an out of date copy, dicks) of which, one of the conditions was a difference in overtime rates; what they called Voluntary and Demand with a difference of a bout 5-7 dollars respectively.

These overtime rates include weekend work, public holidays and also an agreement to work through paid meal breaks. (inability to leave the facility at all while on shift)

Upon informing the manager I intended to request the demand rate (a voluntary choice) this persons entire attitude changed and begin being told it will affect my employment if I dont choose the voluntary option etc.

I decide to stick to my guns and dont agree to their voluntary rate and choose "no" to the answers on their paperwork. Everything is signed, at this point I need to return bank paperwork and that's about it.

I get a phone call two hours later informing that "things aren't working out" and "we aren't off to a good start" and that I will not be required to work my shift nor be required for any subsequent employment.

I'm lead to believe here that their reason for not hiring me was not based on anything other than the fact I refused to give their answers to voluntary/employee choice questions... Which doesn't seem like a fair/legal/justifiable reason to me. Particularly when I am overqualified for the position regardless.

Thoughts?

Edited December 4, 2012 by Safez

[in_spirit]

contact the unfair dismissal mob or the associated union, they have denied you opportunity and at the same time failed to offer equal employment opportunity - stick it to them, so what if you dont get the job, teach them a lesson.edit to say fairwork australia as well

Edited December 4, 2012 by in_spirit

[Safez]

I've shot off an email to the DEEWR. I'll hit up fair work Australia now. I have no interest in working for the company now. However, considering they cost me two days of work with another company I believe they may owe me.

edit - Interesting, To make a claim, an application fee is required. 60 odd bucks... this is a government run organisation... seems that if they cannot, or refuse to make a decision on your case you are given a "certificate" and told to organise a court case.

Seems to me they really don't intend on making it easy for Australians to defend their rights. I wonder if it's worthwhile shooting of a general enquiry to see if they think I have a case or if I'll be asked to fill out the appropriate paperwork and pay the fee. Probably cheaper than paying a solicitor for their counsel.

hmmm. I'll await DEEWR's response, they will likely refer me to Fair Work.

Edited December 4, 2012 by Safez

[in_spirit]

stupid firefox browser

Edited December 4, 2012 by in_spirit

[in_spirit]

to be honest, i dont think it is worth the hassle, the gov't has screwed the worker, no matter what you will probably only come out with an amount equal to what you would have earned if working and you will need to pay for legal representation unless in a union.I have been through unfair dismissal and at the end of the day i was no better off and so i may as well have not proceeded. if i wnet to court i would have won about $22kbut after legal cost the solicitor saif $5-8k. So what it really is there for is to passify the worker who was unfairly treated 'Yay, i won the case' but i still dont have a job. I hope you can see what i mean. Australia has been owned and we are simply 'human' resources.

[Alice]

'Yay, i won the case' but i still dont have a job.

 

So what? He should do it for the principle of it, not the payout. It may of only been two days lost, but by standing up for his rights, it may be harder for them to fuck over someone else in future, who may be in a much more vulnerable position.

[Sallubrious]

It sounds like they would have been a pack of pricks to work for. If they intended to screw you right from the start you can bet they would have kept doing it whenever they got a chance.

The way they reacted when you wouldn't sign seemed like they were not happy about employing anyone that is willing to stand up for their rights.

This sort of shit is sweeping the country now that unions have more or less been made redundant.

[brokenswan]

They may as well not bother to have any workplace laws for all the good they do.....it's often too hard or too expensive to take it to court....having said that I did get a settlement after pursuing an unfair dismissal & discrimination case....in my case they settled out of court, it was a very small amount considering what I had lost but my co-workers were all too scared to stand up in court against my employers. I couldn't afford a lawyer, luckily a union lawyer was willing to give me free advice...I had a bloody solid case too, really I excepted the settlement because it was just getting to the point where it was consuming my life & it was too hard going it alone.

More recently my husbands' employer habitually 'forgets' to pay him...every payday it's a case of 'will they or won't they'. I t had happened once or twice before he took them up about it and THEY got shitty...said they'd get around to it and don't hassle them about it on weekends(he sent them a text message) and then, to add insult to injury, asked him if he was having financial difficulties...patronising bastards! Felt like saying 'you're the ones not paying what you owe, pal', anyway the point is, that it is, of course, strictly illegal not to pay on the exact pay day(and sometimes they are a week or more late) but there is no way we can do anything about it so the law is useless really.

I would say that what they have done in your case Members2 is strictly against workplace laws but could be difficult to prove it...they'd probably make up some bullshit...hope you get some recompense..

[in_spirit]

i

So what? He should do it for the principle of it, not the payout. It may of only been two days lost, but by standing up for his rights, it may be harder for them to fuck over someone else in future, who may be in a much more vulnerable position.

 

Don't mistake what i am saying as complacency, I fought the company tghat did it to me, for the principle. My first post was how i felt stick it to them, but, the truth is my second post - they dont care about paying a fine to not deal with you - safez attitude could grow inside the company,in the long run they saved more money by not hiring him cos if he didnt volunteer and he got higher pay - everyone will want it. What i was trying to therefor say is 'fight' if you feel fit and want to prove ur point, but it wont change anything.

[in_spirit]

brokenswan ur case sounds remarkably like mine

[GoOnThen]

You need to give us a little more information about this agreement. You said that there was two overtime rates were these rates time and a half or double time rates. From the way that I read it is normal over time as in standard overtime you are paid a standard over time rate and for overtime out side of those times you would be paid a higher rate.

So the main thing you need to know is the standard overtime rate the award rate if so then there is no problem. However if it is below the award rate then it comes down to the agreement.

With any case like this you need to find out exactly where you stand as far as the deal that was on the table. Were they legally allowed to offer that agreement or not. If they are able to employ people on that work place agreement then if you don't want to work under those conditions then you need to go and find another job. If they cant legally offer that agreement then complain to fair work Australia and hand over the paper work that they wanted you to sign. If they are breaking the law then fair work Australia will deal with it.

I personally would not even think about trying to fight with the company unless they did not pay you. If you were paid the correct pay for your two days then there is not really any thing more you can do but move on and find another job with a company that you want to work for and that wants to employ you.

Cheers

Got

[Thelema]

if i were you i'd email the guy and simply say he's not employing you because of the way you chose to answer that form and you'll take it further, and CC the personell department and the CEO of the company. Tell them exactly what you told us and exactly what action you intend to take.

I'll bet you some obtusifolia seeds that they roll over and offer you the job. They don't want a legal fight. take it up with them directly!

[Safez]

Hey guys I'll provide some more detail here

@ GoOnThen - The company is a local, family owned (not mine) petroleum concern trading as one of our countries largest retailers (Think British, think one of the worst natural disasters in history, think gulf of mexico). They have an enterprise bargaining agreement in place for casual employees. This agreement covers concerns, of which, one is overtime rates. These rates relate to not only, standard overtime, (worked outside of "regular" hours or in excess of what can be asked of an employee per week) but weekend work and public holiday work.

Overtime is defined as the following in their agreement, which adds to the confusion. ( I say this because I have summarised the following from their original text)

Any overtime work an employee requests (ie: weekend work, public holidays etc) is to be paid at the defined "voluntary rate"

Any overtime work an employer rosters the employee for is to be paid at the higher "demand" overtime rate.

However, I was asked to immediately sign what could only be described as a waiver I guess; this stated that I was waiving my right to be paid at the demand overtime rate for rostered shifts and to work at the voluntary rate regardless.

As this is an employee choice, an employer can not (according to fair work website) look unfavourably upon employment of someone for exercising an employee choice. That choice being, I did not agree to be paid at their voluntary rate for rostered overtime shifts.

The work I missed wasnt with the company (although I will be missing out on 5 hours of pay for a trial shift I completed) it was labour hire work I had to cancel as the work was only two day contract where as this position was ongoing casual.

@ Thelema - As nice as it would be to have employment again (longest hiatus of my life, over 12 months now -_-) can you imagine the contempt and reticence towards me? as SallyD mentioned, considering their attitude up to this point, they would be particularly unpleasant to work for.

I do like seeds :D although, announcing my intentions gives the company a chance to get on the back foot, defensive. I prefer the element of suprise I'm thinking I may have more luck if I was to approach this with legal representation. They are less likely to fight me that way. Sure I might end up with 20 bucks in my pocket at the end, I will have avoided however, ongoing, life consuming bullshit as has been warned by brokenswan and in spirit

Edited December 5, 2012 by Safez

[theuserformallyknownasd00d]

Trust me, stick it to em. I did, and got $6k. Different circumstances, but I proved harassment from 8mths ago that the govt acknowledged along with a heap of unpaid overtime, sick leave and compassionate days. I believe they did the books back to the start of my employment for this also. I now earn 8k extra and manage a store right across the mall. It's blissful knowing other employees are doing this to him now also. all because I got the shits, quit and filled out some forms!!

D00d

[Safez]

Update -

Received message back from DEEWR only it's been referred to Fair Work Australia.

The message outlines Part 3-1 of the Fair Work Act which includes the aforementioned coercion

The prohibited actions come within the following categories:

 adverse action;

 coercion;

 undue influence or undue pressure; and

 misrepresentation.

The FW Act states a person (e.g. an employer) must not take adverse action against another

person (e.g. an employee) because the other person either has a workplace right or has, or

has not, exercised a workplace right; or proposes to, or not to, exercise a workplace right.

So I'll go ahead and fill out their form after midday. slowly mull over it until I'm happy with all of my initial responses, send it off. Let it float around the virtual office until someone comes to work on Monday feeling particularly full of themselves and in the mood to actually do something right... Wishful thinking? We'll see!

[GoOnThen]

From the information that you have given us I think you might have misunderstood the agreement. I don't believe they were giving you an option as to what rate you could be paid at. The voluntary and the demand rates are what they will pay as per what they have deemed as voluntary or demand overtime. In other words it is all part of the employment contract and by you saying you would only work at the demand rate then you haven't excepted the conditions of the contract so you were no longer offered the position.

Again I can only base this upon what you have provided and without seeing the contract it is quite difficult.

When you say they asked you to sign a waiver was that separate to the contract or were you just signing the contract which stipulated the rates that they would pay for overtime.

Cheers

Got

[Safez]

the document I signed was an agreement to be paid at the voluntary rate for any overtime shift. That is any overtime shift I am rostered for or choose to work on.

I can post here those specific pages of the EBA as I do have a copy of it if that would help?

Edited December 7, 2012 by Safez

[Safez]

Update!

I have finished completing what I believe to be the appropriate form and have highlighted the following contraventions to part 3-1 of the act

3-40 General protection contravention

3-42 Discrimination

3-43 Coercion

3-44 Undue Influence

3-55 Misrepresentation

Will anything amount of this!!!!? I'll keep you posted folks

UPDATE -

After a debate between myself and the fence post I decided to resupply and reflect a little more on my current course of action. I chose to call Fair Work Australia to find out specifically what they actually do, and what the extent of their role would be in this particular situation.

After the rigmarole with the inexplicably irritable phone centre operator not wanting to play ball because I was referring to the companies "acts" as "policies" I was able to conclude the following.

In regards to breaches of the Fair Work Australia Act 2009. specifically the section regarding General Protections and dismissals - Fair Work Australia has the ability to do the following for the person making a claim that an employer/company has been in breach of the act:

1. provide conciliation and mediation

2. provide an opinion

3. provide a "certificate" allowing the claimant to pursue the matter in civil court thus ending their involvement in the process (Whilst costing the employer in breach nothing and having cost the claimant $64 in lodging fees)

Fair Work Australia does not in this instance have the power to

1. Force an employer to pay a claimant any reconciliation (for example, unpaid day of work or work that was missed due the breach)

2. Enforce any type of punishment (fines, etc) against the company in breach of the Fair Work Australia Act 2009.

So... Why would any involve the Fair Work Australia Tribunal, an "independent, government sponsored organisation" who's duty is to set these "acts" and see them enforced/adhered to by companies... If they are incapable of punishing companies for breaching the very Act/rules they are paid to conceive and uphold.

It's a shitty world we live in folks. In any case, I do not have the legal resources to battle the company of one of the richest men in town. Who, in whispered tones is considered to be a cutthroat prick and hated by most, is a local philanthropist. (who some may believe he only does for tax purposes anyway). Who is also backed by the brand/trading name of one of the top ten largest companies in the world.

-Options

A. I proceed with this, utilising free legal services (possibly, but unlikely to be available to me) Dont pay a cent, getting sub-par legal representation in court and maybe walk away with a few hundred dollar settlement.

B. I make efforts to find a competitor/rival/backer willing to provide financial support in an attempt to generate bad press/ruin reputation of.

C. Try to incite some sort of "class action", with the potential to do one of two things

1. Cause a huge media shitstorm

2. Be silenced by same media due to media affiliations with.

D. Do nothing

thoughts?

Edited December 10, 2012 by Safez

[johnnyzero64]

I thought you had to be employed for 6 months by a big employer (more than 15 employees) or employed for 1 year by a small employer before Fair Work Australia would ping employers in the wrong for anything.

[Safez]

That would be true if the matter was based solely on performance I believe. This was a failure to employ which is covered under this "act".

[Distracted]

I know the company and I know the form. I've talked to fair work body australia before and they've told me the form is completely unlawful and anytime you do overtime you should be paid that overtime. I'm not 100% sure they're right.

Anyway! You don't want to work for them.

They shouldn't have made you sign the form, they should've hired you and had your manager under strict instructions not to let you get over 35 hours.

It's company 'policy' to NEVER pay anyone overtime hours.

A side note... under the Australian Award you would've signed under, a 24/7 business has no downtime, so no loading times are necessary to be paid (ie midnight shift) but weekend rates should still apply.

This would've been the first of a long list of ways you'd be treated unfairly under this company... be glad you saw through their bullshit.

[Sallubrious]

I've read this a few times now and it's a good example of the way the world is going.

I went to school with a few greedy sons of bitches with no common decency, they are the ones that have done the best for themselves financially and they fit the same grain as this arsehole employer.

It's got me questioning the virtues of teaching moral values and respect to my kids. In some ways I feel like I'm training them to be losers because arseholes like the prick this thread is about will eat them up and shit them out without a second thought.

It's not sort of world I want to perpetuate. The world doesn't need any more arseholes, so I suppose I'll just have to teach them to spot these sort of cunts & teach them strategies to deal with them.

[LokStok]

^ Sally, perhaps use examples like this when teaching them that they they dont have to be arseholes to be successfull.