Updates

Overworked professional employees – How do you comply with the Fair Work Act?

Each week we read about another employer who has been allegedly not paying their employees for the hours they have worked.

These cases are often not concerned with employers applying a pay rate that is less than the applicable award rate. Rather, they relate to the use of weekly or annual salaries that build in an over-award margin, which is alleged to be insufficient for the hours actually worked by the employee.

By Charles Power

Each week we read about another employer who has been allegedly not paying their employees for the hours they have worked.

These cases are often not concerned with employers applying a pay rate that is less than the applicable award rate. Rather, they relate to the use of weekly or annual salaries that build in an over-award margin, which is alleged to be insufficient for the hours actually worked by the employee.

The focus of the attention of the Fair Work Ombudsman and other agencies is primarily concerned with situations where young or otherwise vulnerable employees are exploited through these arrangements.

This is fortunate for those employers of professionals who require these employees to work 50 or 60 hours a week. Often these organisations do not have any records of the hours worked by their professional employees.

In most cases there is no award applicable to the employment of these workers. However the Banking, Finance and Insurance Industry Award covers senior specialists and professionals in the financial services sector.

The Professional Employees Award (PEA) covers professional scientists, engineers and IT employees. The PEA does not designate a penalty rate for working overtime. However, it requires that full-time employees are compensated for time worked regularly in excess of ordinary hours of duty (being 38 hours per week or an average of 38 over a regularly worked cycle), time worked on call-backs (or in readiness for a call-back), time worked on afternoon, night or weekend shifts and any time spent carrying out duties over the telephone or via remote access outside of ordinary hours of duty.

This compensation can include granting special additional leave, granting special additional remuneration, taking the above factors into account in fixing annual remuneration, or granting a special allowance or loading. The PEA requires this compensation and/or remuneration to be reviewed annually to ensure it is set at an appropriate level.

What are some other options to mitigate your legal risk in this area?

Copied