It happened at a military Air Force Station. A civilian secretary never went out to lunch but proceeded to eat at her desk every noon hour while eating her ham sandwich, chips and drinking her diet coke, in the meanwhile, in between bites typing reports and answering phone calls.
When she retired, she applied for and received from an administrative law judge, five hours per overtime per week, for the 20-some years she worked in the public affairs office.
This is an example of an employee gaming the system, but more often the opposite is true. The employer is gaming his employees. In an article in the Guardian, it is reported that Australian workers perform an average of nearly six hours per month, or nearly two months a year of unpaid overtime labour.
The Australian Fair Work Act
The Fair Act defines full-time employment as 38 hours per week. Employees are allowed to refuse unreasonable requests for overtime, but according to the Fair Work Act, unfortunately, the law fails to define what reasonable is.
So employers and employers are often in an undeclared war over overtime. The Fair Work Act was intended to give employees a reasonable lifestyle, with sufficient rest and relaxation, but employers are constantly stretching the law.
But beyond the rest and relaxation issue, employers often have clever ways of stealing time which should be legitimately paid as overtime. Cutting employee lunches and breaks to meet a deadline, demanding that employees show up 20 minutes early to hear an unpaid safety briefing, to warm up equipment, or to transfer the operator of machinery are examples of time stealing.
LawOffices.com, one of Australia’s largest compensation legal law practices, has represented many clients with Law Advice concerning overtime and the Fair Work Act. And they offer the following advice:
- Keep careful records of every instance you were required to work overtime. Make note of who in the company made the request, and how much notice they gave you in advance.
- Provide your attorney with any written policies, if available, of any company rules such as mandatory meetings, shift transfers, or special pre-shift and post-shift procedures.
- If you have a written work contract, bring it to your attorney for your attorney to examine.
- If you have been hired as an independent contractor rather than as an employee, provide your attorney with all the circumstances of your work. Are you truly independent? Do you use your own tools? Can you create your own hours? Or are you at the beck and call of the company? Are you really an employee in disguise?
- Are there other employees being cheated out of overtime by the company? Would they be willing to go in with you in a challenge against your employer?
Another clever tactic used by employers is reallocating hours in order to keep the company staffed during peak times. An Australian hardware chain was accused recently of doing just that. When business was slow, they sent employees home, but their hours were “banked.” Then, when business was brisk, they packed on the banked hours into their schedule but did not pay overtime.
The bottom line on overtime
With overtime being generally undefined by Australian law, and jobs in the economy being tight, if you are systematically being abused by an employer, chances are your only choices are either living with an abusive overtime system, to quit or to take legal action. You need to consult carefully with an attorney before making your decision.