Unpaid Time in Lieu

[diginsw]

Hi,

I'm a full-time permanent employee with 38hrs of billable work. During the initial 4 months, my team and I worked more than 45hrs plus/week to accommodate a Global client. This includes working out of office hours (7 pm - 10 pm or 6 am - 8 am) on top of the regular 9-5
We were told that any overtime hours would be added to Time in lieu and would be reflected in our payslips under annual leave hours
However, once the project went LIVE our parent company (Located in Europe) decided not to honour this and considered this as part of our job description. There has been a lot of back and forth on this and looks like it is not likely to happen.
My contract does mention that I need to work overtime sometimes to accommodate client needs but nowhere mentioned about the frequency. The time in lieu was offered verbally and not in writing by the management

My question is
1. Should I report this to Fair Work? Whilst working in the company
2. Is the email records sufficient to prove my case?

 

[Tim W]

1. Certainly speak to Fair Work, and
see if they have any inisights, not least of which is jurisdiction.

2. What does the choice of law clause in your contract say?

 

[Rod]

You are covered by Australian employment laws so can report it to the FWO.

You likely have 2 causes of action related to unpaid hours:
1. Rights under the Fair Work Act
2. Contractual. If an agreement was reached on how to 'pay' for extra time time worked, the company is bound by the agreement and cannot legally just unilaterally change the terms of the agreement. Your contract may include a choice of law clause, however it may be argued you had a 'side agreement' and can invoke Australian common law regardless of what choice law country is specified in the employment contract.

It may be you can take the dispute to the FWC for a decision, but too many unknowns to comment.

Despite the legality of it, you should realise that your employment is at risk if you complain about their treatment of you. You might win at court/FWC but be without a job.

We can assist if you want legal advice.