Your rights: Unilateral change to contract

By CHRIS PATTERSON*

Q. I work as an Esol teacher and had been employed for six months by a company that contracted to state schools to supply specialist Esol tutors to their fee-paying students.

During the last school holidays I was presented with a contract that completely changed my pay structure even though my job had not changed. I was now to be paid for contact time only but had a 12-point job description that did not include any teaching. The extra duties were to be completed in unpaid administration time.

In my response I suggested that if my remuneration was for teaching surely it should be included in my job description. I was also no longer to be paid for a morning tea break and my hourly rate included a 6 per cent holiday pay loading.

I didn't agree to this as it effectively reduced my hourly rate by approximately $2.00 an hour and my weekly hours by just over 90 minutes. But my workload had in fact increased by value of the new job description and number of students I was to teach. I let my employer know that I would be away on holiday from the next day until the following Sunday.

I arrived home to a new contract in my letterbox, offering only 6.25 hours and a demand that I respond by 7pm that night or I wouldn't have a position to return to. I replied saying that I could not live on six hours pay a week and was not happy to be treated this way. If I had been aware of these changes in the previous term I would have spent the (unpaid) holiday looking for new employment and ended my contract on the last day of the previous term.

I now wish to be paid my holiday pay for the time I spent working for the company, as my pay slips never showed that my hourly rate included it. Therefore I believe I am entitled to it.

A. Your question raises two issues: how far an employment agreement can be varied and whether you are entitled to holiday pay.

Employment agreements are binding and enforceable and cannot be varied without the agreement of both you and your employer. A unilateral change to an employment agreement is not enforceable if you don't agree to it.

Some jobs do change by evolution, usually caused by changes in the way work is to be performed, and employees cannot expect to be insulated from change. However, your situation appears to be more of a unilateral change rather than your position evolving.

I suggest that you talk through your concerns with your employer. Employment relationships are supposed to be based on mutual trust and confidence, with both parties conducting themselves in good faith.

Your employer may have some valid reasons for wishing to implement changes. You both need to try to work through a solution to this problem.

Generally speaking, if you provide services for your employer you should be paid. A failure to pay you for administration time might be a breach of your employment agreement as well as the Minimum Wage Act, which prescribes the minimum rate for all workers. You could discuss this point with a labour inspector if you cannot resolve it with your employer.

Whether you are entitled to holiday pay depends on your agreement. As you have been working for less than 12 months it is possible that paying on a pay-as-you-go basis would be lawful. Such an arrangement is not advisable if you work for an employer for more than 12 months.

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