It's about time that this is addressed. When I was still in the workforce and salaries were used to employers' advantage. "We pay you a salary, we expect some overtime when required." That overtime was inevitably several afternoons/evenings a week... I enjoyed my job so it wasn't an imposition, but it was unfair theft.
Now meet the other kind of wage theft.
And yes, my employer at the time also accessed my time in this manner, because it was "covered in the salary." (It wasn't. My salary was basically wages plus a few percent loading, certainly not as many percent as the amount of time I worked overtime. I was doing an extra 10% when spread out over the year, my salary was perhaps 2% more than the equivalent wage. I wasn't offered a wage option.)
So it's welcome that the Aussie Gov't is looking into this, but I fear that as usual, the legislation will be both too little too late, and also too forceful for many to risk trying the new laws.
Too Little Too Late
Unless it's carefully handled from the point of view of the defrauded employees who are dependent on the goodwill of their employer in this shitty gig economy (yes it's still here, ask anyone balancing three different gig jobs just to pay a slumlord landlord more than a third of their income) because there are only a few outcomes for them and none are really appealing.
Then too - what do you offer an employee in this IR legislation? Will it be a lump sum settlement? Will it have to be calculated to the minute? And will the employer face punitive fines on top of that? What good will those punitive damages do the employee?
Too Risky Too Fraught
There's one other big BIG BIG reason why this new set of rights may not be exercised as much as it should be, and that is that there will be large consequences of applying them. What are the two most likely things a government body tasked to create these new IR regulations will come up with?
Firstly, as I said, there will probably be a punitive fine arrangement, after all, the commission that will oversee and administer these laws will need to pay for themselves. In the case of an employee being found at fault, that could be disastrous. To a large corporation, this is less than a slap on the wrist.
There's a huge asymmetry here, meaning an employee will always be at a disadvantage. If - IF - the employee could afford legal representation at anything like the calibre of legals the corporation can afford, the cost of them will wipe out any gain the employee stands to make, and need to be repeated if the employer commits the same crime again later. (See Too Much Too Final next section.)
If you assume that the playing field is level and both parties must represent themselves, most corporations will argue that they can't personally attend to every case of wage theft and will need a representative. Still asymmetric.
Too Much Too Final
And here's the clincher: Unless the final solution is really well thought out, the more likely laws will include compensations such as
A lump sum awarded to the employee by the commission.
This is likely to be pretty much the wages that have been stolen plus maybe a small percentage loading. What this will also include is the ill will and possibly even anger of the employer and cause the employee to lose their job for the slightest pretext following the ruling. Because as I mentioned, there's also:
A punitive fine imposed on the employer.
This, as pointed out, will be to cover the costs of the commission, but it'll also affect the small IT shop employer far more than it'd affect a large multinational IT corporation. But if the employee in the action works for the small shop, the one that might be bankrupted by the fine, depending on the egregiousness of their theft, then they will definitely be looking for a new, solvent, employer.
The outcomes in these cases are all too final, really. ]
There's A Much Simpler Solution
Change employment legislation at the wage prescription level.
WAGES
A wage employee is easy. If they receive an email, text, or phone call before the start of their work day, their employer is in breach. If they receive an email, text, or phone call even one minute after their knock-off time, their employer is in breach. If they aren't away from their desk and packing to leave, or perhaps even outside their place of employment, at knock-off, the employer hasn't provided them enough time to make the departure. Either is egregious and illegal.
The employee leaves home at a time that will allow them to walk in the door in the morning at start of work, and they travel home in the afternoon again not paid for by the employer, so they employer must ensure that they are providing the employee time to come in and settle, and get their belongings and be out the door, out of the workday hours, not the employees' time.
SALARY
A salaried employee will sign to a precise percentage of overtime, and it is understood that this overtime is derated at the standard overtime rates. I.e. if asked to stay for an hour after work, this counts for an hour and a half towards the overtime hours percentage. If the employee has signed for a 40 hour week and 10% overtime, that means that any week they do more than 2.66 hours of time (that a wage employee would expect to be paid time and a half for) extra, they've discharged their 4 hours' overtime for that week and any time beyond that becomes wage theft. If they are asked to do more than two hours overtime on a double time weekend, time beyond that is wage theft.
This also means that a salaried employee can't be made to do all their agreed-upon overtime for the year in just a few weeks, meaning less chance of burnout. It means an unscrupulous employer can't "pump" all the overtime out of a salaried employee and then fire them.
THE FAIRER WAY
An employee can be asked to work outside hours, but it is written into the wage contract that all such time is a) charged in increments of one hour, b) to be paid at the rate of quadruple time, and c) any wage/salary taken at these rates is excused of any government taxes whatsoever. Normal guidelines for what currently constitutes a legally fair amount of overtime remain in force, meaning there's an upper limit to what a person may be asked to do in a day, a week, or a month.
Reading an email or text, or taking a call, will count as the company requiring the employee to do overtime, overtime is chunked out in one hour increments, and each breach, each message will count as the start of a new hour.
Records for telephone calls, text messages, and emails served are these days freely available and unable to be fraudulently altered by employee or employer, so breaches are easy to prove.
An in-person request by the employer can also be easily proven - the employee may just take out their phone, start recording, and ask the employer to either repeat themselves or state clearly that they did not want the employee to work overtime.
If such recording timestamp shows that the request was made outside working hours, it is automatically counted as stolen overtime just as any other form of messaging would be.
Requests to not bring mobile phones to work - I think there are already precedents that the mobile phone is a right these days? Not sure on this.
There are no punitive clauses, just an agreed-upon wage structure that discourages exploitation, and employers will be encouraged to take on another employee rather than pay existing employees quadruple time.
Yes, the Government misses out on a tiny fraction of income tax, but they already have systems in place for taxed and untaxed income portions. And face it, how many employers will want to pay an employee four times the hourly amount for a 1 minute breach of Right To Disconnect laws?
In fact, as I said, it might encourage employers to use their overtime budget to hire another employee, leading to more employment, and in fact more taxable income tax. Since it'll be written into IR Wages Law, there won't even need to be a separate commission to administer any new fines, existing laws will cover all that already.
The issue won't be solved with a sledge hammer approach, and unfortunately governments seem to opt for this rather than the finessed management approach. If you've read the second of the two links you'll see why the sledgehammer will be what gets used...
Last Thoughts
The use of mobile phones is these days universal, and they're an important tool for everyone, as we've seen in a few cases. I'd rather be fired for streaming my boss making an unreasonable overtime request of me than put up with what I put up with in my past.
As the legislation is put in place, many employers will lose much of their asymmetric power. We're working on doing this with landlords, working on doing the with supermarkets and their relationships to customers and suppliers, and it's definitely time to work on levelling the playing field in employment.
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