Legal Industrial Relations Employment Advice Please!!!!!!

gtfpv · 23-02-2006, 01:31 PM

NEED ADVISE PLEASE . My wife works for trivett classic bmw. she has been there since 1995. she started full time and after our 1st child (unpaid maternity leave she has returned for part time and casual work . now she is permanent part time . the company have no employment history of her before 2001. thats when she went back after our 2nd child was born
so she had 2 maternity leave breaks of 6 months. each . her start date is recorded as 2001. and nothing before that . she has superannuation statements dated from 1995 to date. people say she is entitled to long service. she has approached the pay office and human resources 1 month ago asking to get it sorted . both of these women say they havent had a chance to look into it as they are too busy and snob her off when she enquiresas to her work entitlements and rights.
they held a function for long standing ewmployees last week where they present pins for people with 5 10 15 20 25 30 year employment . she never received an invite . then they caled her name out at the presentation. one of the directors asked where she is and got a reply . we dont know.
now the problem is the young hr lady is the owners daughter.
in my opinion my wife is being treated unfairly and no one in a position of management will do what they are paid to do and clarify the situation.
who should we ring to complain to . im sure there is some industrial relations department you can contact but i dont know who . i have offered to ring the company myself and voice my disgust at this attitude but my bwife wont let me . as she thinks i am prone to be violent.does any one know what we should do ?
is it bad and wrong for a company not to keep records of how long an employee has worked for you . ? IS THAT A CRIME OR FRAUDULANT.???
PLEASE HELP IF ANYONE knows the law in this circumstance. cheers and thanks in advance .

gtfpv · 23-02-2006, 01:40 PM

one more thing i have just found out . that the young HR LADY HAS NO QUALIFICATIONS AT ALL OTHER THAN HSC.
this is a prestige car company with over 400 employees.

Mack 6 · 23-02-2006, 01:43 PM

I'm not a lawyer, but maybe get your wife to express herself in a letter. Be polite and just enquire about her record of employment.
Send it to the HR asking for a reply in writing as soon as possible. If no answer, send it to the next person up the chain and so on.
I don't think there's anything to be gained by yelling at them if your wife is planning to continue working there, it will make it hard for her.
Send the letters and if noone answers to your liking (or at all) get a lawyer or a union rep (is wife part of one?) to send a letter with their letterhead on the top. It will get their attention.

Ouzo · 23-02-2006, 01:53 PM

gtfpov. what is not clear is whether you are simply being given poor service from HR or whether they are deliberately trying to get out of recognising the service. To me it sounds like the former and while I don't condone their slackness, to be fair it is only one month since the matter was raised.

A lot will depend on the circumstances surrounding the various breaks in employment. If it was maternity leave followed by a return to employment then there should be no complications but I note you say your wife "returned for part time and casual work" after the birth of your first child. This may be the complication that has caused the delay in getting an answer. Much will depend on any breaks in employment that happened during this period.
I would put the request very clearly and very calmly in writing to the HR person. Give them a reasonable time frame to respond. I strongly recommend that you not go to an outside agency at this stage - it will be counter productive at this stage of proceedings. You need a formal answer from them before you decide on whether further action is required.

I work in a senior HR role in another state and am no expert on NSW employment law but would be happy to give you some advice if the above approach fails to elicit a satisfactory response. Feel free to email me.

cheers

Work Horse · 23-02-2006, 01:54 PM

Her union will have all the information you require. They will make representations on her behalf to her employer if required.
If she is not a member of a union now would be an excellent time to join.
I am an employer in Victoria gtfpv, so the laws are different. By law I must keep employment records and supply employees with payslips etc.
Superannuation is a stautory right, starting from day one of employment, and payable after 7 years if employment is terminated. The laws are very clear and weighed toward the employee.

There is going to be so much more of this sort of thing going on with the new IR regs.

My advise is join a union today.

pauljh74 · 23-02-2006, 01:57 PM

Quote:

she has superannuation statements dated from 1995 to date

That is proof enough. They'd have trouble proving she had "quit" - there'd have to be record of payment of redundancy or even just the payout of leave owed. On top of that, on her tax returns the employer or employer's ABN is usually listed where income from employers is listed. Also a change of business ownership doesn't mean an employee's service record is reset if the business continues to operate.

Any extended leave such as maternity leave wouldn't count towards the period of service. So if she worked 11 years and had 1 year off, that would make it 10 years. NSW long service leave laws are different to Vic where you accrue 8 weeks at 10 years, but can take long service leave of 13 weeks at 15 years, I think NSW it is 10, and the point where you accrue leave might be 5 years. The default state legislation applies unless an award provides a more favourable long service leave arrangement or specifies the terms in the award.

Found info here: http://www.industrialrelations.nsw.g.../longserv.html
Google is your friend

Ouzo · 23-02-2006, 02:02 PM

Not to labour the point but the key question will be the nature and duration of her breaks in employment.

gtfpv · 23-02-2006, 02:05 PM

thanks for the replies might sound weird as they differ but i agree with all of them. i am in a union and a strong one at that . but where my wife works no one is. and all people are on differant deals .anyone who joins a union there probably would end up going through the courts for years trying to take them down or out of a job at the 1st error.but thats what type of people get employed there .high staff turnover. and back to square one .over and over again. all the people dealing with her case she has outseen their positions about 5 to 1 . in other words she knew 5 pay people and 5 hr managers and 5 direct bosses before the ones she answers to now .
the way of the future or maybe the way it has been for sometime.

EA2BA · 23-02-2006, 02:06 PM

Maybe she should ask other people what starting date HR have them listed for, possibly they started a new system in 2001 and everyone has starting dates of 2001

just a tought.

pauljh74 · 23-02-2006, 02:07 PM

Maternity leave of 6 months per child usually doesn't result in an end to employment with a company. The leave is usually not counted towards service, but doesn't reset her service.

EA2BA · 23-02-2006, 02:11 PM

Sounds like they have distinguished between fulltime and the new position of part time and simply changed the start date in the computer system to match the salary and hours.

Ouzo · 23-02-2006, 02:12 PM

Quote:

Originally Posted by pauljh74

Maternity leave of 6 months per child usually doesn't result in an end to employment with a company. The leave is usually not counted towards service, but doesn't reset her service.

But undertaking casual employment may well count as a break in employment and it will then get down to what the NSW Act says about such things. The facts are essential in these sort of cases.

gtfpv · 23-02-2006, 02:13 PM

Quote:

Originally Posted by EA2BA

Maybe she should ask other people what starting date HR have them listed for, possibly they started a new system in 2001 and everyone has starting dates of 2001

just a tought.

good point she isnt the only one affected . some people have had thier own circumstances clarified. which you would think would get them onto the other employees. but no . and the people who have thiers sorted dont stickup for the people who havent as yet . ( human nature)
also she sorted this problem out 12 months ago with the previous pay lady. only to find out it hadnt been done .
the hr lady got her nose out of joint because she asked why it is taking so long . the reply was i am busy and new at this position and i wasnt even here when you started .
maybe i might use that one next time i get asked to do a job.see what happens to me.
it is very frustrating and in someways probably worth letting go. but that is probably the purpose of the intent.

EA2BA · 23-02-2006, 02:27 PM

long service is worth money, and would give you time for a very nice holiday, i say fight to get the record straight and get whats owed to you, employers these days give so little to the employees.

Keep at the HR lady, she cant get you fired only your boss can do that, so give her hell till its fixed

gtfpv · 23-02-2006, 02:38 PM

Quote:

Originally Posted by Ouzo

But undertaking casual employment may well count as a break in employment and it will then get down to what the NSW Act says about such things. The facts are essential in these sort of cases.

good point i know she transitioned from part time to casual and then back to part time again . payrates and leave changed accordingly . this happened when she was not on maternity leave.
however she never received any leave or redundancy payments of ant sort . she did lose them thoiugh . ie sick pay annual leave etc etc. that is when she finished full time. then she went back part time then, casual, then part time again. so yeah it may be any case . i'm not qualified to say . but. you would think there should be a file . there simply isnt . and she is down as starting from 2001 onwards . but she has pay slips and superannuation statements to prove it.

Des · 23-02-2006, 04:11 PM

Don't mess about mate, go straight to Industrial Relations NSW . This dept. is very helpful and have access to the actual rules and regulations governing your wifes workplace. You can make enquiries at-least to see what your options are.
Good luck.

svo347 · 23-02-2006, 04:28 PM

Whats the point .. no offense mate n i hope you get it cleared but if shes not in a union , wellll not much can be said.
nowdays unless its a union site you have not much to stand on.
Screw awa's

4.9 EF Futura · 23-02-2006, 04:59 PM

First piece of advice would be to calm down. This is a rational question, there should be a rational response - there is little to be gained in taking irrational action.

Let's put unions aside for the time being. Your wife is an employee of this company and therefore deserves to be treated fairly - just like anyone should, regardless of collective membership or not. You dont need to be a member of a union to get straightforward answers to straightforward questions.

You have been pointed in the direction of the industrial relations people for your relevant state but i could hazard a guess as to what they would say....

Put the request in writing as per Mack's suggestion. Keep a copy for yourself. Provide all the facts you have at your disposal - i.e. explain the timeline of your wife's employment history. Be very specific as to what information you are requesting and be clear that it is a FORMAL request for information.

Now im not going to put an opinion forward as to whether your wife has long service leave entitlements or not - thats between you guys and her employer and will obviously depend on the various classifications of work over the past 10 years.

But... if you receive no response to the letter, then follow it up in person or with a phone call (and keep a note of you having done so). If still not satisfied with the response then take it to the IR people in NSW.

If worst comes to worse - tax files, superannuation and employment records should be able to cobble together a complete picture of employment history.

All the best.

(PS. Ive been on an AWA for 2.5 years now and my employer can tell me within 5 minutes my complete employment history so im not sure how this is relevant to the topic.....)

Des · 23-02-2006, 06:39 PM

Quote:

Originally Posted by svo347

Whats the point .. no offense mate n i hope you get it cleared but if shes not in a union , wellll not much can be said.
nowdays unless its a union site you have not much to stand on.
Screw awa's

The Office of Industrial Relations NSW look after eveyone, Union or not. Who do you think the Unions go to with their problems? For that matter, so do the employers.
P.S Don't worry about their HR dept. Go to Industrial Relations, they won't feed you cr@p, someone in HR might to save their own bacon.

MO · 23-02-2006, 11:00 PM

Get your beloved into the union that covers her type of employment..state your case..if the HR mob were upto speed they would have provided the answers.

Ouzo..your a twit!!!!...no wonder your in HR.

Des your on the right track.

SpoolMan · 23-02-2006, 11:21 PM

Check your laws and maternity leave conditions at the time of having time off in 2001. These laws have changed over the years..
The time off may have been granted by the employer outside the current maternity laws of that time, this may make her time of employment start a fresh again.
Hence why the employment started 2001...
I have seen this happen before in the early 90's, find out what the maternity law was at the time and take it from there...

gtfpv · 23-02-2006, 11:23 PM

thanks peoples. i'll keep you's posted on the outcome.

BAFORDFAIRMONT · 23-02-2006, 11:30 PM

I thought long service leave was given after 10 or 15 years of continuous employment. As mentioned before if you took an unpaid break (not resigned) where all your entitlements are put on hold upon your return then that time away would have to be made up. Whereas if you resign and all your entitlements are paid out then you would start again when you rejoined that company, unless negotiated, then your time to accrue long service would recommence from the time you started back.

If you change to a casual then you MAY not be entitled to long service but if you are part-time then you may receive long service on a pro-rata basis, eg if you worked 2.5 days a week then it would take twice as long to get long service.

OLDFORDNUT · 24-02-2006, 09:55 AM

how can a company change you from full time to casual and not pay out your leave and long service entitlements ,i thought there was laws to prevent this type of garbage.IR will sort this out very fast and get all your entitlements in a lump sum ,but once you take this course,you are on borrowed time ,but why would you want to work for a bunch of pricks like that anyway.

pauljh74 · 24-02-2006, 10:15 AM

Eligible employees for long service leave are people who work for reward, casual employment doesn't exclude you - how do I know? I've got 11 years with one company - as a casual. I've already figured out I'm entitled to it. A worker who left after 17 years as a casual got paid out long service leave.

Also, don't companies have to keep records going back 7 years for tax purposes? Although it may be archived somewhere, they should have it.

I'd ask the state IR dept to look into your case and hurry the company up a bit.

Ouzo · 24-02-2006, 10:41 AM

Quote:

Originally Posted by John McMaster

Get your beloved into the union that covers her type of employment..state your case..if the HR mob were upto speed they would have provided the answers.

Ouzo..your a twit!!!!...no wonder your in HR.

Des your on the right track.

Let me see - my advice to get the facts clear, put it in writing, give HR time to respond and understand that a period of casual employment may mean that service has been broken is the advice of a twit. OK I'm a twit! Definitely far smarter to join a union, get them to sail into a non unionised workplace, kick heads and get the same result as my approach. Definitely a smart career move.

By the way unions don't always welcome people who join just because they have a problem that needs solving. They often insist on back dues at the very least in such cases.

Ouzo · 24-02-2006, 12:46 PM

Even though I am a twit, I have researched the issue a bit more. It seems that in NSW a 2 month break in employment will mean that continuity is broken with that employer. So the key questions are:
1. Did your wife definitely take maternity leave on both occasions or did she resign and was subsequently re-employed on at least one of those occasions? If she definitely took maternity leave then her employment wasn't broken.
2. When she worked as a casual was her employment broken at any time by 2 months or more? If so, then she may have lost that prior service.

I stress that more facts are needed before I could give you a definite opinion. For example, she may be employed under an award that has more beneficial provisions. In some other states, termination by the employer (such as in the case of casuals) is treated differently to termination by the employee. I couldn't see such a provision in NSW but it may be there somewhere.

Incidentally, casuals do accumulate long service leave, so the only relevance of the casual employment is the 2 month break issue.

Good luck!

Des · 24-02-2006, 02:26 PM

Quote:

Originally Posted by pauljh74

I'd ask the state IR dept to look into your case and hurry the company up a bit.

Exactly!
Hands up those who are IR Law Specialists?

I'm not. I've been on both sides, Company - Employee. I've negotiated an EBA as an employee and help set up an AWA as the company. Believe me, these are murky waters and you need the help of a specilaist. The Office of Industrial Relations NSW are these specialists as all awards are registered with them.

Ouzo · 24-02-2006, 02:41 PM

Quote:

Originally Posted by Des

Exactly!
Hands up those who are IR Law Specialists?.

My hand is up - 25 years experience (including so 7 for unions so I'm not anti union) and a degree majoring in IR and employment law - hence my interest.

But I agree entirely with you, The NSW department is the right place to go (particularly for a non union member). I just think, the internal process should be exhausted first - the relatively informal approach now needs to be made more formal with a written request. Going external at this stage creates a "vibe" that may not be necessary. And as I keep saying be really clear on the facts which are not clear in the posts to date. The Department will be of no use unless they have clear facts on which to provide an opinion.

cheers

Des · 24-02-2006, 02:46 PM

Quote:

Originally Posted by Ouzo

My hand is up - 25 years experience (including so 7 for unions so I'm not anti union) and a degree majoring in IR and employment law - hence my interest.

But I agree entirely with you, The NSW department is the right place to go (particularly for a non union member). I just think, the internal process should be exhausted first - the relatively informal approach now needs to be made more formal with a written request. Going external at this stage creates a "vibe" that may not be necessary. And as I keep saying be really clear on the facts which are not clear in the posts to date. The Department will be of no use unless they have clear facts on which to provide an opinion.

cheers

Not a shot at you personally, but as you know, when wading through legalities it's best to have someone's help who specializes in the field.