13

I am a full time salaried employee (ie. my contract states I am payed a fixed annual amount, for minimum number of hours a week) for a medium-sized company, working as the sole tech lead for a major project.

This company recently introduced a electronic clock in / clock out shift tracking system across the business, including their many retail stores. This makes sense for the many casual employees who work shifts and are paid by the hour, but all full time staff at head office are also required to use the system, for 'security' reasons.

A while back I noticed that my pay for the week was short by 20%, ie. a days work. Unpaid leave had been placed against my name without my knowledge, which was later explained as being because I had not clocked in or out that day. The issue was rectified, however I expressed concerns at the time that it could happen again, and that doing so without my consent was unlawful.

I often work overnight or early in the morning for my role, and regularly do 11 or 12 hour days fixing issues. My position requires this, especially in the last few months as the project winds up. As a result, I often work from home or come in and out of the office at unusual times. I also occasionally forget to clock in or out, due to something on my mind, but not often.

Increasingly over the last few months I have been receiving emails from HR about missed clock ins and clock outs, with requests to justify the missing times. It is heavily implied that failing to explain these missing times will result in my pay being reduced, which is a violation of my contract. I have spoken to my manager multiple times about it, and although they are on my side, they say nothing can be done as HR is unwilling to consider anything other than a fixed 9-5 Monday to Friday work schedule. I've also discussed the system with HR directly, who say the same, and that all employees are treated this way, regardless of their contract type.

I feel like this system is inappropriate for my position and my status as a full time employee and sole caretaker of a critical system. The constant badgering and time tracking is effecting my morale, which is unfortunate as I enjoyed my work before the change. I suggested that they assume any missing times are worked from 9-5, as I usually do more than that, but this was not accepted. I have also attempted to log the hours I do outside of standard work hours or from home, usually 5 a week, with no results.

I feel as though my only option is some form of peaceful protest to demonstrate that the policies they are asking me to comply with do not apply to me. I am not bound by contract to use the tracking system, or comply with a schedule, only hit a minimum of 40 hours a week, which I regularly exceed by 10 - 15 hours. Given the system is effecting my work, I intend to simply stop using it.

How would you advise that I begin doing this? Should I inform them of my plans to stop using the system first, then follow through, or just let them find out on their own? How can this be a constructive process despite all attempts to negotiate have failed?

PS. I work in Australia, where penalties in the form of docked pay of salaried employees is illegal, in case you need context on labour laws.

  • 13
    Sounds like you should start looking for a new job. – Charles Addis Apr 20 '17 at 3:47
  • 3
    Assume I like my job, company and people I work with. I don't want to have to quit without trying to help them fix their system. – Ucinorn Apr 20 '17 at 3:53
  • 4
    They're likely not going to make an exception to the rule just for you. You may have liked your job previous to this new rule, but is the stress worth it having your pay docked and slowing your career trajectory because you forget to clock in sometimes. I can definitely see a good employee with a poor timesheet record being passed up for promotions and given a smaller bonus. – Charles Addis Apr 20 '17 at 3:57
  • 3
    Bloody spybot, strikes again! Will they pay you extra if you log "too many" hours? – Möoz Apr 20 '17 at 4:20
  • 21
    About the only thing you can do is work to rule - they only acknowledge 9-5, so you only work 9-5 - spend your spare time on something else – HorusKol Apr 20 '17 at 4:59
35

I would advise you to let them know that it would be one way or the other and not declare you won't use their system. If HR requires 9-5 daily then tell them that would mean you don't do any work outside of those set times as it violates their time and attendance policy. It seems clear the company wants to use the time and attendance system as defined.

You have already voiced your concern multiple times and simply not doing what the company mandate is would be very unprofessional since this is their company direction. If they want you to comply with it, then they will have to suffer the consequences of loosing a free 10-15 hours a week of your work, as well as the consequence of no out of normal hours work.

I would hope with that someone would actually look into adjusting something to fit better, but if not you are still adhering as best as possible to the company mandated time keeping policy. I work for a place that operates similarly, but it's time keeping is available online 24 hours a day, so I just have to put all the hours into it and anything over 40 falls into a non-paid overtime bucket. I would think the company would make provisions similarly and work the kinks out of their new process.

Either way, you work for the company and if they want to impose a policy that doesn't make sense all you can do is bring it up and then try to find the best way to honor anything they insist upon.

  • 5
    In Australia and the UK, "having a contract" doesn't imply being on limited-term contract work - it's used as a synonym for "work agreement" with salaried and waged employees (the OP mentions they are a full-time salaried employee - not a contractor). – HorusKol Apr 20 '17 at 5:03
  • Thanks for clarification, I adjusted it to reflect full time employment without all the sub-contract references... – mutt Apr 20 '17 at 5:13
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    This squarely puts the problems of this new policy on the company. If you do your normal thing, you'll have all sorts of issues, but if you move to a 9-5 schedule you'll only have to respond to an immediatey midnight emergency by saying "sorry, I can't clock in until 9" once for them to understand their system doesn't work. – Erik Apr 20 '17 at 5:45
  • It's norr clear that the employer is allowed to pay a salaried worker on an hourly basis. This answer doesn't address this. This is likely a legal question. – Eric Apr 20 '17 at 11:47
  • 1
    Thanks all for the comments. Mutt is correct in that I am not interested in payback or suing, just convincing them of the error of their ways. – Ucinorn Apr 21 '17 at 5:41
22

First off I have to say commiserations - I've been through very similar and it wasn't pleasant. A previous employer of mine operated a similar system and any instances of clocking in late or clocking out early were automatically flagged not only to HR but to the directors as well! Working 5+ hours of unpaid overtime (finishing after 1am) on business critical systems and then being reprimanded and threatened with lost pay for clocking in literally one minute late that morning was just one example of the sort of rubbish they used to pull.

IANL so I can't comment on the legality or not of the pay deduction that they did to you so I'll keep this answer focused on the clocking system and it's application to you.

Can it be "fixed"?

Sadly in my experience the answer was a resounding "no", the company was an awful employer and the draconian clocking system was just one manifestation of the way they treated their staff and after a year of running myself into the ground I left for somewhere a great deal less Kafkaesque and the improvement in my self esteem and general stress levels was remarkable. I'll admit my own experiences mean I'm not 100% objective about this but I think my advice is still to get out, run, vamoose, scarper, make like a tree etc. In docking your pay (even if it turns out not to be illegal) they have made a clear statement of intent that they are going to stand behind this new timekeeping policy and I hate to say it but I think that speaks volumes about how much they value you.

That said your situation is slightly different than mine in that you have a positive history with the organisation and role that pre-dates the current problems so there may be some hope!

If you'd like to at least try to resolve the situation then you need to give them a business reason to change it. Simply refusing to use the clocking system but otherwise carrying on as before doesn't really do that - the work is still getting done and it just creates disciplinary issues for HR to deal with, but that's part of their reason for existing anyway so the only party really having any negative consequences is you in having to deal with the stress and any mucking about with your wages. By the time it gets to the point where it has to be addressed by your manager or senior management (I'm assuming from what you've posted that your manager isn't senior management) you'll be thoroughly annoyed and that will play nicely into the picture that the HR department would likely present - that of a disgruntled employee who believes that the rules shouldn't apply to them, i.e. you are the problem.

Instead you need to make it apparent that HR and their rigid policy is the problem so I'd recommend that you simply (and immediately) begin working to a strict 9-5 schedule. I wouldn't announce this as some kind of "stand" or "protest" or anything like that I'd just start doing it and re-adjust all your planned timescales for any deliverables to take into account the reduction in your hours. Make sure that otherwise you are a model employee, you work hard, you don't grumble, you just clock in and and out and get on with it - but only between 9 and 5. Then one of two things will happen:

They won't notice/nothing happens

This is unlikely given the role you have and the quantity of extra hours you were doing but if it does then you can enjoy your new work/life balance happy in the knowledge that they didn't appreciate your additional efforts any way.

They notice project slip/they ask you to do something out of hours

At this point you as calmly and dispassionately as possible let them know that you have been happy to be flexible in the past and would be happy to do so again but that flexibility has to go both ways and that as the company (via HR) has made it's position clear you've adjusted your flexibility to match. Point out that you've tried to compromise already and been rebuffed but if they are willing to compromise so are you, hopefully either your manager or if they don't have the authority someone further up the ladder they escalate it to will be able to do the math that a system aimed at improving productivity in the business has, in your case, reduced it and that blindly enforcing arbitrary rules unilaterally is not worth the "cost" to the business in terms of the hours of your time they have lost and a satisfactory compromise will be worked out. If you get fobbed off with a "my hands are tied" or "It's policy" type answer then be understanding, maybe even commiserate with them, but stick to your guns and say that if anything changes you're happy to revisit the question and carry on with your 9-5 pattern. One such conversation might not be sufficient to get any traction but eventually they will have to work something out with you or just accept the business impact of their choice. If it's the latter then there are probably ways they can make your work life unpleasant but I believe Australian labor laws mean they can't dismiss you as long as you're complying with your contract (which you will be) so you can just take that as a big flashing neon sign that this organisation probably isn't somewhere you want to be working and you can start using all that extra time you used to spend working extra hours for them to go find an employer that will value you.

Make sure if you are going to go this route that you make sure firstly that you are fulfilling your contract (and HR's schedule) to the letter and secondly make sure everything is documented, if you have a conversation with your manager about it then summarize it in an e-mail to him/her afterwards (make sure you have copies of any pertinent e-mails outside of company-controlled systems - print it or bcc to your personal e-mail if allowable under their IT policy) and always, always, keep in mind that this is a business relationship between you and the company, no matter what relationship you might have with individual colleagues or managers it's the company you are dealing with here and the company is not your friend, it is not your family and you don't owe them anything more than what you are contracted to do and compensated for.

  • 4
    +1 for "flexibility has to go both ways". Anything less is just Darth Vader (generally the employer) saying "Pray I do not alter it further" when it comes to your legal contract that should not be changeable in such a way. – Ethan The Brave Apr 21 '17 at 14:35
  • I'd let my boss know in advance that I wouldn't be working out of hours any more. Make it something he has to plan for, not a nasty surprise. That way he's more likely to blame the policy than the employee. – Robin Bennett Sep 12 at 8:13
5

Step 1: Speak to a lawyer

Preferably one who deals with contract law.

It seems to me that you are not being treated fairly#. No matter how much you enjoy working there, they should not be deducting your pay under the specified circumstances1.

From the Fair Work Australia website:

Taking money out of an employee’s pay

...
An employer can only deduct money if:
  • the employee agrees in writing and it’s principally for their benefit
  • it’s allowed by a law, a court order, or by the Fair Work Commission, or
  • it’s allowed under the employee’s award or registered agreement.

Examples include salary sacrifice arrangements or additional payments into an employee’s super fund.

An employee's written agreement must be genuine. They can't be forced to agree to a deduction.

Deductions have to be shown on the employee’s pay slip and time and wages records.
-Deducting pay & overpayments, Fair Work Australia website.

If you're not comfortable or can't talk to a lawyer, contact the Fair Work Ombudsman.

Extra reading:

Step 2: Join a Union

In Australia, Unions have a decent amount of sway, and can (should) help to protect your rights, or at the least, provide a voice for you. This all depends on the union and the industry.

I believe your Retail union is the SDA.

Step 3: Speak to your HR and your manager(s)

At this point you need to make your stance official. I understand that you want to do this "peacefully", which is good. The best way (in my opinion) is to set this in writing$, either e-mail or a formal letter. Follow this up immediately with a meeting with both your HR representative and your manager(s). Have a clear script of what you're going to say. After the meeting, follow-up with an e-mail or letter re-iterating what was discussed or agreed to within that meeting.

Remember, laws overrule company policies; so unless you've agreed to it this deduction is actually unlawful. This is why it's important to voice your disagreement rather than a "silent" protest, because in Australia, when it comes to Contract or Employment Law, "going with it" is tantamount to agreeing with the policy:

Acceptance is an unequivocal statement (oral, written or by conduct) by the offeree agreeing to the offer.
- Agreement, Australian Contract Law. [emphasis mine]

This step is conditional upon Step 1, because, IANAL. You are also able to bring your union representative, or have them conduct the meeting on your behalf (it's cleaner).

Step 4: Brush up your resume

Again, I mentioned earlier that you may enjoy working there, but you should not agree to under those conditions. You yourself have mentioned that

The constant badgering and time tracking is effecting my morale, ...

This is obviously causing you undue stress and is proving to be counterproductive. And I agree%.


# IANAL
$ In writing ensures that you leave a paper trail. If anything unfortunate happens, you can dig that up and use it as proof that you don't agree with what is happening.
% Incidentally, I've worked in a similar situation in the past and I can tell you that it doesn't get better.

  • 3
    Very good answer. One thing to add: Comply with the policy for the time being, clock in correctly, starting immediately, and also inform them in writing about any time you worked but you were unable to clock in. Otherwise they can attempt to use the partially clocked times to fire you for not showing up to work. – Peter Apr 22 '17 at 13:59
3

regularly do 11 or 12 hour days

Log this overtime into they system. When the system will show lots of correct and honest overtime for you, the company may really think if they do not benefit more by not tracking the working hours. This should work as a "gentle protest" well enough.

Working hours of high managers, scientific researchers, first startup employees with the promised great future and some other roles are not tracked for a very good reason.

If the system is configured to give you no possibility to enter such overtime, address exactly this problem in the conversation with the management, not if you like the tracker or not. This is a mess. They should fix if they care about the company. If you need additional arguments, log the time on the sheet of paper next to you.

If the company decides to track the working hours anyway, you will have the legal and honest possibility to leave much earlier another day, or maybe even take the complete day off just to zero your overtime balance. Or they may even need to pay you for these extra hours. The system may actually be your friend and not the enemy.

If you keep forgetting to clock in and out in real time, ask for permission to report the worked hours later (say till the end of the week).

2

Why argue with this situation, unless the time punch system is cumbersome or unreliable. I'm salaried and have to fill in a time sheet every week. For HR purposes it is sometimes necessary to have all employees track hours. Also, some types of exempt employees are required to work 40 hours per defined work week but aren't given overtime for days they work +8 hours. Even high level executives are required to submit time sheets or record hours within my organization.

Just clock in and out and stop complaining. Honestly, it makes you less desirable as an employee to protest against such a simple request.

  • I have been in both OP and your position. My filling out a timesheet at the end of every week was easy and not that disruptive. Having to ensure I was clocked in and out of the building when onsight was not that hard but annoying, more so if HR make a big deal of missed minutes next to hours of unpaid overtime. Getting any account made for offsite working hours or remote work was very hard, so hard that it was a disincentive to bother remotely repairing issued I noticed outside of the 9-5. Everyone can wait till I clock in 08:59 on Monday for that 3 hour repair task to start. – TafT Sep 17 at 15:28

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