Are we required to keep records of unpaid overtime for salaried staff?
The Fair Work Act 2009 (Cth) and the Fair Work Regulations 2009 (Regulations) set out the minimum time and wages record-keeping requirements for all national system employers. Most businesses with employees within Australia are national system employers. If an employer is a non-national system employer, they may need to comply with the minimum requirements stipulated in legislation or regulations operating in their state or territory with respect to record-keeping requirements.
The Regulations require that records are detailed and kept for at least 7 years. These records include hours of work records, which must specify the number of overtime hours worked each day, or when the employee started and finished working overtime hours (if a penalty rate or loading applies to the overtime hours worked, which may not be the case for salaried staff unless they are covered by an enterprise agreement or award).
If employers fail to keep proper working time records, they may bear the burden of disproving allegations raised by employees in proceedings relating to underpayments.
If an employee claims unpaid overtime or penalties, and the employer cannot produce records of those hours they were required to keep under the Regulations, the employer has the burden of showing the employee did not work those hours. This would be difficult to show if no records were kept.