The Fair Work Commission (FWC) has determined that award-covered professionals should be entitled to penalty rates when they are required to work before 6am or after 10pm Monday to Saturday, or any time on a Sunday or public holiday.

The FWC determined that full-time professional employees covered by the Professional Employees Award 2020 (Award) – including engineers in the construction industry, consulting engineers, engineers in manufacturing, mining engineers, scientists, IT professionals and professional employees in the gaming sector – frequently work hours well in excess of 38 per week, either on a regular basis or during peak work periods. These employees:

• are usually paid an annual salary that is intended to cover all hours worked;
• often do not have any fixed hours of work;
• are usually not paid any overtime payments for hours worked in excess of 38 hours per week; and
• are rarely granted time off in lieu (TOIL) for additional or excessive hours.

The Award also covers professional engineers and scientists who are paid significantly in excess of the minimum annual wages prescribed by the Award, particularly at higher classification levels. However, a minority earn less than the amount they would earn if they were entitled to be paid the hourly rates prescribed in the Award for all hours worked.

The FWC has determined that the Award will provide an entitlement for employees it covers to the minimum hourly rate for 38 ordinary hours of work a week and such reasonable additional hours that the employer may require or request the employee to work. There should be an entitlement to TOIL and a 125% penalty rate for all hours worked (whether ordinary or overtime hours) before 6am or after 10pm on any day Monday to Saturday. For casual employees, this should be in addition to their casual loading. A penalty rate of 150% should be payable for rostered hours (whether ordinary or overtime hours) worked on a Sunday or public holiday. Again, for casual employees, this is in addition to their casual loading.

The Award will require the employer to keep records of all hours worked by an employee in excess of 38 per week, or worked before 6am or after 10pm on any day Monday to Saturday, or worked at any time on a Sunday or public holiday.

The penalty rates and record-keeping requirements would not apply to employees earning 25% or more in excess of the minimum annual wage for the appropriate classification in the Award.

The FWC will also amend the coverage clause of the Award to exclude employees employed in a wholly or principally managerial position.

The changes are expected to commence in March 2023.