Q: We are looking for clarification on whether a contractual obligation would supercede guidance surrounding a calculation of minimum wage top up protection.

An excerpt of the employee contract states;
“On the occasion that the employee is required to work more hours in a fortnight than would equate to a pro rata hourly rate of less than the minimum wage, then the employee will be paid the applicable minimum wage rate per hour for each hour worked in a fortnight that exceeds the pro rata rate minimum.” The calculation in the employee contract is based on the Base Salary plus Superannuation contribution before minimum wage top up is triggered

Some employees receive an accommodation allowance. Would you please provided your guidance on whether the accommodation allowance should be included in the minimum wage top up calculation? Noting it is contractually stated in their employee contract that the top up calculation is triggered based on the base salary plus superannuation contribution (excluding any accom allowance paid.

A: If the employment agreement is stating that the top up calculation is triggered based on the base salary plus superannuation contribution (excluding any accom allowance paid), then you have agreed that the allowance cannot be used as part of a top up.  So, the employer must pay the minimum wage rate for any additional hours worked and they must be paid in the pay period that relates to those hours worked.