VIC When is the Commencement of Employment Contract?

[unique_user_name]

I have been employed by an organisation from Feb 16 on a casual basis. As a casual employee, I am obliged to submit for approval a timesheet weekly on a Monday.

On 29 Apr 16 a letter of offer, for a full-time position, was communicated to me. The organisation dated the commencement of that role as 26 Apr 16. As there was no time limit for consideration, I took the weekend to mull over the offer. On 2 May 16, I signed and returned the letter of offer. This to my mind constitutes as an employment contract that commenced on 2 May 16.

02 May was also the date that should I wish to be paid for works undertaken the previous week that I was required to submit a claim for payment.

Today 04 May 16, the organisation claims that I must repay them monies paid to me for work I completed as a casual as I was not entitled to receive these funds. I would argue that I did not become party to any contract with the organisation until the date I consented to the terms of the offer and I am entitled to the payment received and should not be forced to re-pay the wages.

My questions are, when did the employment contract come into existence, the date within the offer, the date of the communication of the offer or the date the offer was accepted? Am I obliged to repay the wages?

 

[Rod]

the date within the offer

^^ This unless stipulated otherwise. If the contract mentions a start date prior to your signing, and you sign knowing this, then the start date is the date in the contract.

 

[Wikiwebs]

The Fair Work Act 15A applies. It stipulates a person is a casual employee as of the date the offer of acceptance is communicated to the employer. This is necessary because casual worker rights take effect under the law as of that date. For example if no assignment is ever given to a casual, and even if they are terminated prior to the "Commencement date" in the contract, then rights under the Fair Work Act remain available to the casual employee. If that was not the case then General Protections in the FWA would be worthless - an employer could terminate the casual before commencement on racist grounds claiming you never became an employee according to the contract.

What appears in the casual employment agreement cannot invalidate, override, ignore, or waiver rights under S15A, or any statute law. While this may differ in permanent employment contracts, I'm surprised that any legally informed person might seriously suppose otherwise.

 

[Wikiwebs]

...although, on rereading this question it actually revolves around when the casual employment ended.

According to the FWO, "Once someone is employed on a casual basis, they continue to be a casual employee until they ... become a permanent employee through casual conversion, or being offered and accepting an offer of full-time or part-time employment...".

Under S15A of the FWA the casual conversion occurred on the date you signed the permanent employment contract, qualified only by a commencement date in the future. The casual contract cannot be terminated retrospectively by yourself or the employer by a sham contract arrangement attempting to pervert S15A of the FWA. The date of termination did not take effect until the offer was accepted by you for the same reasoning that applies as I mentioned above - a contract cannot waiver rights you have under any statute unless the statute itself makes an exception and the exception applies.