If a person takes up a new job with probation conditions attached to the job and he or she is required to read these conditions and if agreeable sign and return within 14 days but doesn't receive the letter outlining these conditions and the signature required until after he or she has already started the job and then he or she realises they don't agree with those probation conditions where does this person stand? Can he or she request that they are returned at the employers expense if the job is some distance from their original location or are they basically stuffed because they have already started work for the company?
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Monts, prudent advice from Frankie. Call Fair Work on 131394 M-F, 8am-5.30pm.
Just be careful: Choose your battles. Don't win a battle to lose the War.
Do you like or respect your employer or new role?
Even if you're legally right, you might not be wise to start antagonising your employer with claims they have done something untoward or technically illegal. It may have been an oversight without malicious intent on their behalf. I'd try to talk to my employer first, and don't mention Fair Work. Try to work something out with them first. Or worst case: plan your exit without a war.
Out of curiousity, what aspects of the probabation condition(s) do you take issue with?
Anyway, mate, I really hope it works out for you.
The main concern H.O.E. is the fact that the letter outlining the probation conditions with a 14 day period of reading, and if agreeing with and signing was not received until well after the job had begun. They are now saying that because the job has begun that it nullifies the probation letter. I'm not sure if this is correct.
Monts, Whether you're on probation or it's invalid and "nullified":
Before calling Fairwork, check out that link. It has plenty of other information that may help, including example templates you could compare your agreement with.
Just becareful mate. Keep your information close to your chest when talking with your superiors - avoid a war. You'll lose even if you're right. Try to work something out with your employers, without outside parties, for your own sake. Even Fairwork recommend that. Otherwise, you're dead man walking.
Are you happy there - other than the technical issues with the probabation period?
One of the key elements of a contract is that an offer is made and subsequently accepted with some certainty around the terms of it.
In this case, you were not put on notice of the probation conditions and, therefore, can not be taken to have accepted them. Therefore, the probation terms are not binding.
However, overall agreement is an employment contract. If, by conduct, you are taken to have accepted the terms of it (including the probation terms), then it will be binding.
Take home message: raise it with your employer and give them notice of the areas of disagreement. If you cannot resolve the issue favorably, reassess. However, if you continue to show up to work, then, with time, you will be deemed to have accepted the terms.
Good advice Johnny .
I’m not a lawyer, MontoEel, so those saying call Fair Work are giving the best advice. But I can offer one correction to some comments on the thread. Can you be fired for asking your employer why the contract did not land in your lap before starting the job? No! Employer retribution against you for some query on your part that the employer may have violated laws or regulations would fall under “unlawful dismissal”, not “unfair dismissal”. Any employer would know the difference. Or, SHOULD know the difference.
Remember, what we call probationary period is really just some period that employer and employee “agree” (yeah, it’s typically a one sided contest!) the employee can be fired without the employee being able to claim unfair dismissal. But the employee can still claim unlawful dismissal. And one of the grounds is being fired because one raised a matter of law or regulation that the employer failed to honour. Is timely provision of contract and it’s conditions one of those legal thingies the employer has to get right? I’ll leave that to the lawyers but common sense says if you are bound by a contract you should view and sign it before starting work?!
PS: the Academic Union deluges us with what terms mean in our enterprise bargaining agreements. Australian Uni’s typically have five year probation periods so this unfair/unlawful distinction gets a lot of coverage!!!
Monto, If you sign a contract it is your own responsibility. The Job Description would have been outlined to you. If you feel that you have been hard done by, then your only option is to work it out with your HR and get the JD off them. If this was a misrepresentation from the company then you will need to again work it out with your manager.
If you are unable to work out a better deal for yourself, then you have a paddle and are up ship creek. You best look for another role or accept the terms. This is why you should always read the terms of the contract and if you do not like anything have it removed from the contract or modified before signing. Remember its a 2 way street. You can say I dont want probation in my terms. This gives you control of the environment. Probation only works for the company. Ive been down a similar path with my last employer. They basically succered me into a role and I had to work with 3 idiots who I never met in the interview. They rushed me to sign on the dotted line and I left a very good job to work with idiots. Those idiots and I didnt get along and they got rid of me after on my last day of probation. Did I think about the conditions and the people I was about to work with ? that would be no. Sometimes the Companies are the Con Artists and not the applicants. You need to do research on the company and check for reviews of that company. Had I done 30 mins I would still be at my last job and still raking in the $$$ and happy. But we all make mistakes. I hope Fair work will help you out but I think your fooked.
Tad. that avenue would still be there, but I have yet to read what the job was and in what industry. Being an ex Branch Secretary and divisional councilor, there are traps used by companies to side step unions and if a new employee, especially if they are on probation, going to the union that handles that work place, the company bosses will find ways to get rid of the young person if he joins a union. There are a lot of jobs around the country that do not employ union members, as far as possible. My daughter is a teacher and at one school she was warned off joining their union by the principle in no uncertain ways, when she told me about it, I said to her to join the union and pay your dues, when you go paid, the school does not have to know but you do have the unions protection.
There was an incident at her school and the teachers were warned not to try and circumvent any decisions by the school and they threatened wage reductions as a wedge or sacking. My daughter advised the union about what was going on and while the rep who went to the school was threatened if he continued to disrupt things then there woule be issues. The aspect that they could not find out who had made the report made them very wary as they got a visit from a government appointed officer regarding the issue. It turned out that more than a few of the teachers there were union members but the school did not know.
A probational employee, is more often under threat moreso than others, going to fair work commission, they are independant and will handle the case without much fear of the company, as they watch the different conditions that workers work in and under. Specific industry unions also work for the workers, and have specialist type reps. It helps them when they receive a complaint or simple question regarding the contracts and probationary side of things. So in most instances it does not matter how minor or trivial the matter may appear on the surface, making an enquiry and seekin advice should not be seen as a crime and action against the employer.
If one looks at the so called union militants power, we should also look at similar organisations that represent business and various companies and their powers. Business council of Australia, Farmers Federation, Chamabers of commerce, that operate in most rural area's especially have powers in the larger rural towns/cities are three that immediately spring to mind, but in the past before I was medically retired I came across many more, many would be surprised at how they can control the workplace under what is seen as neutral organisations, and only representing those businesses that are their members.
That's a well put together short application that should be considered more than it is.
Thanks for posting it Tad.
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