Late last year I had several questions and concerns raised regarding overtime and additional hours and there still seems to be a lot of confusion on these matters. 

Reasonable Additional Hours 

An employer must not request or require an employee to work more than the following hours of work in a week, unless the additional hours are reasonable: 

• for a full-time employee, 38 hours (unless their award or enterprise agreement specifies different hours); or 

• for an employee other than a full-time employee, the lesser of: 

• 38 hours 

• the employee’s agreed ordinary hours of work in a week. 

Where additional hours are unreasonable an employee can refuse to work them and whether a request is reasonable is dependent on each situation. Factors that can be relevant however include but is not limited to: 

• any risk to employee’s health and safety 

• the employee’s personal circumstances, including family responsibilities 

• needs of the workplace 

• any prior notice given 

• the usual patterns of work in the industry 

• the nature of the employee’s role and the employee’s level of responsibility 

• whether they are entitled to any overtime, penalty rates or other form of compensation in exchange for working the additional hours. 

Whilst additional hours may be reasonable, employees must always be adequately compensated for the additional hours worked. 

Overtime 

When it comes to overtime, employers need to check the relevant award or EBA in place for the employee and see what penalties are due for this. If an employee was award free however, then there are no additional penalty rates or similar for overtime unless specified in their contract or similar. 

Under the Clubs Award clause 22 details the various overtime rates and how much this would be is dependent on when it is worked. 

A casual under the Clubs Award is entitled to overtime rates when they work more than 38 hours in a week or 12 hours in a day, whilst part-time employees get overtime where:  

• they work in excess of 38 hours a week, or where the employee works in accordance with a roster, an average of 38 hours a week across the roster period (which can’t be in excess of 4 weeks); and/or 

• where they work in excess of the employee’s rostered hours (e.g. if they were rostered to work from 12-5pm but finished at 6pm without any prior agreed change to the roster, the last hour is overtime). 

Part-time employees also have some restrictions on when they can work under the Clubs Award in clause 11 and must have agreed on their availability and if they were to work out of this that would be deemed out of rostered hours.  

Full-time employees get overtime under the Clubs Award where they work:  

• In excess of the hours or outside the rostered hours specified in clause 15 of the Clubs Award; or 

• more than the daily spread of hours as specified in clause 15 of the Clubs Award. 

Employers looking at overtime for full-time employees need to look at clause 15 closely. 

If an employer is seeking to cover any overtime applicable with a salary arrangement via a contractual clause, it must be adequately covered by their salary each pay period and where this is not the case an underpayment has occurred.  

There may also be clauses contained in an Award or EBA stating that where an employee is paid a certain % above the award rate, certain entitlements are taken to not apply e.g. clause 18.4(a) of the Clubs Award for Club Managers. 

If an employee is under an IFA to be paid a higher base rate or similar in lieu of entitlements such as overtime, then the IFA must make them better off overall.  

Time off in lieu of Overtime 

Time off in lieu of overtime (TOIL) is another entitlement that is often misunderstood and it is not a default entitlement and to legally provide TOIL, it must be in line with the provisions of a relevant award or contractual term (that is not making them worse off).  

An employer also can’t just elect to give someone TOIL in exchange for overtime without any proper clause or agreement in writing and TOIL can’t be contrary to entitlements set in legislation or the National Employment Standards (NES). 

It is also important to highlight that under the Clubs Award and several other Modern Awards, TOIL is an entitlement only in relation to overtime and not ordinary hours. Some Awards like the Clubs Award also specifies the amount of TOIL given is equivalent to the overtime payment that would have been made. 

Clubs SA members who have any questions in relation to overtime and/or additional hours can contact Clubs SA for advice.