VIC how to calculate interest for a late payment in years

[Scruff]

@Rod: I'm not a lawyer so I'm unclear on this. Are you able to shed any light as to whether or not this may provide a loophole for the employer:

The contract states:

This means that the terms of any modern award that would otherwise apply to your employed position will have no application to your employment conditions.

But s330 of the Fair Work Act states:

(1) An undertaking given by an employer to an employee is a guarantee of annual earnings if:
(a) the employee is covered by a modern award that is in operation; and ...

I'm wondering if the employer can claim that a "modern award" does not apply because of the terms of the contract, therefore s330 does not apply. What are your thoughts? Possible loophole because the employee signed the contract, thereby waiving award conditions?

 

[johnnyyue001]

@Rod: I'm not a lawyer so I'm unclear on this. Are you able to shed any light as to whether or not this may provide a loophole for the employer:

The contract states:


But s330 of the Fair Work Act states:


I'm wondering if the employer can claim that a "modern award" does not apply because of the terms of the contract, therefore s330 does not apply. What are your thoughts? Possible loophole because the employee signed the contract, thereby waiving award conditions?

thanks Scruff, one of my legal advices I got are:

Clause in your Employment Contract deals with your Remuneration Package. It references several sections in the Fair Work Act 2009 (the Act).


Section 329 in the Act defines what is meant by “High income employee” and Clause in your Employment Contract has been drafted so as to satisfy the requirements of the Act in that regard. Your contract specifically references section 330 in the Act and guarantees that your annual earnings will exceed the high income threshold. Your Employment Contract is ongoing and the guarantee is for the term of your employment with the company which can be ended by either party in accordance with Clause 17 Termination (noting that this clause may not comply with the statutory provisions in the Act i.e. the NES, which is not necessarily displaced by this Employment Contract.


You may have noted the references in your Employment Contract to “annual earnings”. Your annual earnings are guaranteed to exceed the annual high income threshold. However, the Remuneration Package in Schedule A does not appear to satisfy the statutory definition of annual earnings insofar as that term relates to the high income threshold. Section 332 in the Act sets out what payments to you are to be included in the calculation of your annual earnings. We note that s.332(2) inter alia provides that an employee's earnings do not include the following:


(a) payments the amount of which cannot be determined in advance i.e. any incentive payments;


and


(c) contributions to a superannuation fund;


For the duration of your employment, the high income threshold has been:


FY 2014/15 $133,000

FY 2015/16 $136,700

FY 2016/17 $138,900

FY 2017/18 $142,000

FY2018/19 $145,400


Your Total Pay of $xxxxx when you commenced employment was below the $133,000 high income threshold. We do not know what your Total Pay has been in subsequent years; however, we will assume for now that you have documents which show what your Total Pay was in each of the following years. It is irrelevant how much incentive payments you received. In our opinion, you have been underpaid in FY 20014/15 and may well have been underpaid in subsequent years.

 

[Scruff]

Can you tell us have you lodged any claim with the employer yet? If so, how did they respond?

 

[johnnyyue001]

Can you tell us have you lodged any claim with the employer yet? If so, how did they respond?

Just asked hr now, haven’t replied me for 2 weeks, just said “get back to you shortly”

 

[Scruff]

Okay. I think it's probably best that I leave you in the hands of the professionals at this point, because we're getting to a point where this is outside my knowledge.

I would suggest that the following would be helpul to the pros:

1. When you contacted HR, did you specify an amount that was owing?
2. When you contacted HR, did you indicate in any way that interest should be paid?
3. In regard to the advice that you refer to above, did that come from a legal practioner? (It's important that you let the members here know if you have already sought professional legal advice.)​

I may have an IQ that is very much above average, but I think that the pro's should take over now. I'll monitor and keep learning. Over to you @Rod.

 

[Rod]

My comment 're: One clause' means that I've only looked at one clause of a larger contract. It is dangerous giving an opinion based on such a small snippet from a larger document.

if the employer can claim that a "modern award" does not apply because of the terms of the contract, therefore s330 does not apply.

Contracts can say whatever they like but it does not necessarily mean all terms of the contract are enforceable.

Without seeing the contract in its entirety, and without knowing if the work is covered by an award, I can't reasonably comment on how the contract and award provisions interact, or if they do at all.

There are clear principles that will apply but now we're beyond what is reasonable to say in a public forum and moving to a situation where the OP needs to pay for proper legal advice. Prima facie the quote from one lawyer seems eminently appropriate.

 

[johnnyyue001]

Okay. I think it's probably best that I leave you in the hands of the professionals at this point, because we're getting to a point where this is outside my knowledge.

I would suggest that the following would be helpul to the pros:

1. When you contacted HR, did you specify an amount that was owing?
2. When you contacted HR, did you indicate in any way that interest should be paid?
3. In regard to the advice that you refer to above, did that come from a legal practioner? (It's important that you let the members here know if you have already sought professional legal advice.)​

I may have an IQ that is very much above average, but I think that the pro's should take over now. I'll monitor and keep learning. Over to you @Rod.

hi Scruff, thanks, yes, let me wait HR come back firstly. currently I just told them I feel it is a issue, pls get back to me. I haven't raised any claim no any $$ figure request yet. the advice I quoted was from a lawyer in my suburb. so yes I will continue to seek their advice and update here.

and back to the OP, it is more about how the interest shall be calculated. thanks again. your and Rod inputs are very helpful to me.

 

[Rod]

we're getting to a point where this is outside my knowledge

You remind me of me. It is important to understand that Uni only covers a small proportion of our laws and is but a starting point to the practice of law.

You show promise but be very aware of your knowledge limitations and try to avoid definitive statements for this reason. Some long standing practitioners can be caught out when they stray from their speciality. Lawyers who tend to be GPs of law confronted with a situation that is a little unusual will generally either seek advice, or refer the client to someone else specialising in the appropriate area of law.

 

[Scruff]

@Rod: WOW - if you knew me, you would understand just how much of a compliment that is and how much I genuinely appreciate you taking the time to say that.

Would I disappoint you if I was to admit that I'm not a hot 24yo blue-eyed blonde female law student - but instead a long dark haired green-eyed 51 year old never married male in public housing with tonnes of life experience and currently studying a diploma in private investigations?

I'm also a musician - the avatar really explains it all.

All jokes aside, thanks for the kind words mate - much appreciated. Just keep correcting me if I get something wrong! Deal?