- April 11, 2024
- Posted by: legaleseblogger
- Category: Related News
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## Situation Overview
I have been employed at my current company for less than a year and according to my industrial award, employees in this situation are only required to give one week’s notice. My contract aligns with this provision, stating that any longer notice period specified in the Commencement Conditions Schedule will replace the default one-week notice period.
## Employer Dispute
The Commencement Conditions Schedule in my contract includes a four-week notice period, which my employer is now asserting as binding. However, the schedule also explicitly acknowledges the industrial award and stipulates that in case of any inconsistency between the contract and the award, the latter prevails to the extent permitted by law.
## Legal Interpretation
Furthermore, the contract’s termination clause specifies that after a probationary period, employment termination must adhere to the terms of the industrial award. If the award does not address the notice period or defers to National Employment Standards, the contract provides specific notice provisions.
## AI Legalese Decoder Assistance
The AI Legalese Decoder tool can assist in deciphering the complex legal language in your contract and industrial award, providing clarity on the hierarchy of terms and ensuring that your rights under the industrial award are upheld. By inputting relevant clauses and provisions into the AI decoder, you can receive simplified explanations and insights into how to navigate the dispute with your employer.
## Seeking Advice
Considering the conflicting interpretations of the contract and industrial award, it is advisable to seek legal advice to clarify your rights and obligations. Additionally, consulting with HR or a workplace relations specialist can help navigate the dispute and advocate for your interests.
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Fair work is worth a call. Over the last 10 years this area has changed a lot. Employers can no longer withhold annual leave payments for failure to give notice. The courts have backed up employees on this issue numerous times now. It’s a legal entitlement to receive annual leave and it’s part of the NES (national employment standards) and can’t be overridden by award/contracts even if both parties are in favour of it.
They can put whatever they want in a contract to some extent but in this area there’s not a lot they can do to enforce it.
All of this aside though. Why burn bridges you don’t have to.
>I believe that my contract clearly says that the industrial award overrules any agreement made in the contract and from what I can see there is nothing in the award that recognises any increases in notice period.
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That’s not quite how it reads/works. Otherwise why ever bother with a contract? You can’t cherry pick one clause and make it override everything else, and you need to understand the entirety of the contract to know what applies.
Are you being paid above the award rate? Or do you have more generous leave allowances? Is there something in your contract that gives you an advantage over and above the conditions of hte Award? If not… why bother with a contract?
Is there a clause that the employer will pay out/work out four weeks notice in the event you are asked to leave? That’s an advantage beyond the award too (if you were fired you’d get four weeks pay right?).
If you have an advantage in this contract then they can legally hold you to it – as the award is providing less than the contract. A contract can never be for less than the award.
Can your employer hold you to this? It’s nebulous. If you decide to just stomp off after one week they can‘t hold a gun to your head and force you back. They probably have provision to with hold that four weeks pay though. They’d have to pay you for how long you work at a minimum, plus any annual leave you are owed. But you will be burning a bridge – if the new job isn’t what you hope it is, or disappears you are left with no reference and crappy work. You can only carry so much of that on your resume (you can carry a little).
What are they going to do? Spend $20k suing you … for what? But what is the less obvious loss for you? Is your new employer a customer or client of hte old one? Is your new employer going to remember you did this when it comes to your own contract negotiations with them (you have already negotiated and signed the new agreement and passed any clearances and checks right?)? Is your past employer able to dock incentives and retention payments? Etc
An industrial award sets out the minimum notice that you must provide under labour laws.
This does not negate any conditions in your contract. You must remember that a contract is an agreement that you have made between yourself and your employer. You have agreed to provide 4 weeks of notice, regardless of the prescribed legal minimum.
Your employer is limited in making deductions from your pay to claw back insufficient notice, but it doesn’t stop them seeking civil remedy for breach of contract.
One easy solution. Go on extended sick leave across the notice period.
Especially if you’re leaving because it’s a toxic or unpleasant work environment
They literally can’t force you to turn up to work. If they’re very pedantic about the 4 weeks, this is an option to avoid working most of it
I have to provide 6 months according to my eba. There is also a statement that this can be negotiated down to as low as 4 weeks. Nobody is ever held to 6 months as people would just walk out but that range means they can negotiate ta notice period that works for the business and the employee. If there is a negotiation clause, try to use that.
As others have said, if you walk out after a week they can take what you owe them for the notice period out of final payments of leave.
I recently had this situation. I gave 4 weeks notice as per the contract but Fair Work Australia said I only had to give a week as per my Award (Clerks Award).
I gave 4 weeks, boss paid me in lieu of notice, so I did better than I would have giving a week as per the award.
I guess if you give the 4 weeks, will they pay you out in lieu of notice or will you need to work through it?
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Seek some free legal advice from a community law centre that handles these things. The contract looks like a grey area. Someone has brought up a good point are being paid over award. This could alter things. Why not stay on another 3 weeks & it gives you more time to find another job & make sure you don’t give employer a reason not to pay you. Here is not the place to get advice on this problem.
Look at it this way – if *they* were going to *sack you*,
do you think they’d give *you* four weeks notice?
NAL but from the snippets you posted OP it reads to me like the 4 weeks apply. The industrial instrument refers to that other clause in the commencement schedule as replacing it, so it’s not inconsistent. If they directly contradicted each other you might have been able to rely on the order of precedence but it doesn’t seem that way from what you posted.
What’s the hurry? Just wanna get out of there? It really depends if you want to die on the hill or not. As others have said nobody can force you to work, you’re not a slave. However depending on what industry you’re in, how your reputation may be affected, it may be worthwhile just hanging in there for the for weeks.
Ask for it to be paid at double time.
You only have to provide a week but they could likely claw back the three weeks and with hold that pay in lieu.
They can’t force you to come back to work ball and chain. Just don’t go back. It’s not best practice and I’ve always said never burn a bridge you may have to retreat over but that’s up to you.
You are not a slave.
You work when you want to work.
Litigation is very expensive.
You do you
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