ASU Wins Overtime Decision in Fair Work for Private Sector Admin Members
Has your employer asked you to work extra hours before or after you go on leave? If that happens, you’re probably entitled to overtime. All public holidays and leave count towards your weekly hours when working out if you’re entitled to overtime pay.
The Australian Services Union (ASU) has recently won a Fair Work decision by Deputy President Gostencnik in case AM2022/8. The decision clarified that periods of leave or authorised absences from ordinary hours of duty under the Clerks – Private Sector Award (the Award) are part of the ordinary weekly hours and the maximum daily ordinary hours constituting the relevant trigger points in clause 21.1 and 28.1.
In 2022, EPI Capital (a pay roll firm) asked the Commission to change your award so that employees wouldn’t be entitled overtime if they took leave in the same week. The Commission rejected EPI Capital’s application after the After the ASU members challenged the application. The Commission agreed with the ASU that employees should be paid overtime when they work extra hours, even if they are going on leave in that week.
How does overtime work under the Clerks – Private Sector Award?
Most administrative professionals are covered by the Clerks Private Sector Award. These are the minimum standards for pay and conditions in our industry.
You are entitled to be paid overtime if you work more than your ‘ordinary weekly hours’. This means the hours you’ve agreed with your employer to work each week. For full-timer, this will be either 38 hours each week or an average of 38 hours over your roster cycle. If you work part-time, your ordinary weekly hours will be your agreed weekly hours. You may also be entitled to overtime if you work more than 10 hours per day or outside the spread of hours for day workers.
Your leave counts as work. Any leave (paid or unpaid) or ‘authorised absences’ (such as public holidays) counts as part of your ordinary weekly hours.
If you work more than your weekly ordinary hours (including leave) then you’re entitled to overtime pay.
Darren works as a payroll officer. His ordinary hours are 38 hours per week. Darren works 7.6 hours each day Monday to Friday.
Darren takes a day of annual leave on Wednesday. In the same week, Darren’s boss asks him to stay back 4 for extra hours.
Darren is entitled to 4 hours of overtime for his work on Friday.
Why? Because Darren’s fixed ordinary hours are 38 hours each week. Darren’s Wednesday leave is considered part of his ordinary hours.
That means the 4 hours Darren works on Friday exceed Darren’s weekly ordinary hours, making them eligible for overtime rates.
In conclusion, the ASU has won a significant Fair Work decision that clarifies the calculation of overtime entitlements for periods of leave or authorised absences from ordinary hours of duty under the Award. The decision confirms that an employee’s ordinary hours are fixed in accordance with the Award and that any additional hours worked beyond those trigger points are eligible for overtime payments.
If you believe you have been underpaid, or have any further queries, contact the ASU today on 0393423300 or at email@example.com
As ASU members, we can protect our award entitlements, join ASU today at https://asujoin.asn.au/
Read the Decision here: 2023fwc841.pdf