Why don’t professionals get overtime?

Analysis

Why don’t professionals get overtime?

A recent media article asked: Why don’t professional employees receive overtime (or time off in lieu) when working excessive hours (45–50+ hours per week)? This article explores this idea a bit further, by examining the issues relating to excessive hours for professionals and the relevant statutory protections that need to be noted by employers.

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As a rule, professional employees are expected to put in extra hours without getting paid overtime. This appears to be a matter of accepted practice rather than adherence to employment law. Also, the definition of a ‘professional employee’ is not clear.

 
A recent article from Fairfax Media asked the question: Why don’t professional employees receive overtime (or time off in lieu) when working excessive hours (45–50+ hours per week)?
 
The article piqued my interest and I thought it was worth taking the idea a bit further, by examining the issues relating to excessive hours for professionals and the relevant statutory protections that need to be noted by employers.
 
Who is a ‘professional’?
 
What makes an employee a ‘professional’? Well, these days that can be pretty subjective. The term ‘profession’ refers to an occupation or vocation requiring extreme knowledge of some area of learning or science. Traditionally, this meant people with a particular qualification in areas such as law or medicine.
 
Today, however, the term professional is used to describe a wide range of occupations that provide a career. So, for the purposes of this discussion I’m using a definition that is as black and white as possible: professional employees are those who are not covered under an industrial award or agreement, while non-professionals are covered by an award or an agreement.
 
Modern awards and professional employees
 
Now, before the comments start flying (although comments are most welcome!), let’s cover the exceptions to that definition. The introduction of modern awards has increased the scope or coverage of awards into professional occupations that may have been, previously, award-free.
 
Before modern awards existed, many professions may have had award coverage, but this was limited to a particular state or territory, or limited to those companies listed as a respondent to a federal award, or the employer was a member of a federally registered employer organisation with organisation respondency to the federal award. Because modern awards are now ‘common rule’, meaning they apply to a national system for employers and employees throughout Australia, these restrictions to award coverage no longer apply.
 
The following are modern awards that provide for overtime whose coverage includes professionals, where award coverage under the pre-Fair Work regime was not universally applicable:
    • Architects Award 2010
    • Health Professionals and Support Services Award 2010
    • Journalists’ Published Media Award 2010
    • Manufacturing and Associated Industries and Occupations Award 2010 — classification C1
    • Medical Practitioners Award 2010
    • Pharmacy Industry Award 2010
    • Professional Employees Award 2010
    • Surveying Award 2010
    • Miscellaneous Award 2010
WorkplaceInfo occasionally receives questions regarding possible award coverage for professional employees since the commencement of the modern award system introduced a new award, the Miscellaneous Award 2010. You should be aware however, that the Australian Industrial Relations Commission determined that this award is not intended to cover award/agreement-free employees, or employees who have not traditionally been covered by an award. This includes managerial employees and professional employees such as accountants and financiers, marketing, legal, human resources, public relations and information technology specialists.
 
Overtime — it’s not the law
 
So, on to the matter of ‘overtime’: overtime is not a statutory provision — the payment of an overtime penalty rate for work in excess of an employee’s daily or weekly hours is subject to the terms of his/her contract of employment. In simple terms, if there is no penalty rate provided for additional hours in the contract, then no penalty rate is payable.
 
An entitlement to the payment of an appropriate penalty rate for overtime is related to specific awards or enterprise agreements. Historically, most professions haven’t been covered by an award, while some state and federal professional awards set up pre-Fair Work Act did not prescribe overtime. As a result, professional employees have traditionally not had payment for overtime as a condition of employment, even those covered by an award.
 
The Fair Work Act and extra hours
 
The topic of ‘overtime’ leads logically to a discussion about working extra hours in general, and whether employees are paid overtime or not. The regulations regarding this issue have changed in recent years, with the Fair Work Act introducing provisions relating to the working of extra hours that apply to all employees, whether they’re covered under an award or agreement or not.
 
While there’s no prohibition on working additional hours, the Act provides an opportunity for an employee to refuse in certain circumstances. The maximum hours provided under the National Employment Standard (NES) are 38 hours per week, with the provision that an employer may require an employee to work ‘reasonable additional hours’ in the week.
 
When working out what ‘reasonable’ means for each employee (note: this includes part-time employees), you need to ask yourself a few questions:
    • Is there any risk to employee health and safety from working the additional hours?
    • What are the employee’s personal circumstances, including family responsibilities?
    • What are the employer’s needs?
    • Is the employee entitled to receive overtime payments, penalty rates or other compensation for working extra hours?
    • What notice (if any) do you need to give when asking (or requiring) the employee to work the extra hours?
    • What notice (if any) does the employee need to give if they’re refusing to work the extra hours?
    • Is there anything else relevant?
Case in point: personal circumstances are a broad church
 
There is little or no case law relating to the concept of working additional hours and nothing that relates to professional employees. While this is partly due to the relative recency of the Fair Work Act itself, the main reason is that professional employees not covered under an award are loathe to take action against their employers regarding overtime and extra hours, for fear of losing their job or opportunities for promotion.
 
The only precedent that is even vaguely relevant is a recent case heard before the Federal Magistrates Court, where a man employed as a fish keeper was dismissed after four months when he refused to work additional hours performing maintenance, including weekends and public holidays.
 
Reasonableness not established
 
The man tried to negotiate time off in lieu rather than overtime payment because he had an outside business interest, but the employer refused and dismissed him. The magistrate’s decision demonstrated that an employee’s ‘personal circumstances’ (which are relevant to determining whether overtime is ‘unreasonable’) are to be understood in the broad sense and are not limited to family commitments or caring responsibilities. It was determined that the request to work additional hours was unreasonable in the circumstances.
 
However, the primary reason why the Court considered that the employer had failed to establish that the imposition of further overtime on an involuntary basis was not unreasonable was because it failed to provide evidence about how much overtime the employee worked from time to time, either specifically or on an average.
 
The employer needed to produce this evidence to demonstrate that, given the total amount of overtime worked by the employee, the imposition of additional involuntary overtime was not unreasonable. Whether the imposition of a requirement to work three hours on a weekend, Saturday or a Sunday, or a public holiday, was reasonable would depend on the amount of overtime which an employee ordinarily works. See: Brown & Premier Pet [2012] FCMA 1089; Premier Pet t/a Bay Fish v Brown [2013] FCA 167.
 
General guidance
 
While this case involved an award-covered employee, it also provides guidance for employers on this issue with respect to all employees, including professional employees.
 
The bottom line? You should seek advice before insisting on any changes to an employee’s working hours other than with consent.
 
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