LawTalk Blog

I am not being paid appropriate overtime hours. What are my options?

overtime pay

Overtime hours are considered differently under each award or workplace agreement (including enterprise bargaining agreements).

It is classified under the National Employment Standards (NES) as any work in excess of 38 hours in a week or work outside the ordinary hours being listed in the award or agreement. Therefore, an employer can't ask or tell an employee to work overtime unless the extra hours are reasonable.

You are entitled to be paid if you are working more than the maximum weekly hours as per overtime rates under most awards and agreements. However, you can also refuse working overtime if you believe that a particular request is being unreasonable, is threatening your health and safety or affecting your personal situation with family duties.

Further, in order to tell whether extra hours are reasonable, employers need to consider:

  1. the needs of the workplace;
  2. whether employees will receive overtime, penalty rates or other compensation;
  3. whether they will receive a level of remuneration that shows they are expected to work extra hours;
  4. how much notice is given to the employee; and
  5. if the extra hours fit with agreed averaging arrangements.

In calculating overtime rates (except if you are a shift worker), under most industrial instruments, you would be entitled to be "paid time and a half for the first 2 hours and double time afterwards." Overtime rates are calculated on a daily basis and each day would be classified as being independent when overtime penalties are applied.

The minimum amount of overtime you can be paid during a week is half an hour. For example, if you work 15 minutes of overtime per week, you must be paid for 30 minutes at the appropriate overtime rate of pay. Also clerical employees when working overtime may be entitled to a meal allowance.

If you believe that you are not being paid appropriate overtime hours there are a few options that you can take:

  1. If you have been allegedly underpaid then your employer may agree and correct the error.
  2. If an employer disputes your overtime payment request, you can lodge a complaint with respect to underpayment of wages or entitlements to the Fair Work Ombudsman.  This matter would then be referred to a workplace inspector who will undertake an investigation.

Under the Fair Work Act (Cth) "a court must not make an order in relation to an underpayment that relates to a period that is more than 6 years before the proceedings concerned commenced." Time limitations apply, so it is important to act immediately you become aware of an underpayment.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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