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WA What's 'Reasonable' Unpaid Overtime - Employer Breaking Employment Law?

Discussion in 'Employment Law Forum' started by linelevel, 30 September 2015.

  1. linelevel

    linelevel Member

    29 September 2015
    Likes Received:

    I work for an engineering/mining firm in Western Australia. I have a TAFE Diploma level qualification and am a fulltime employee working 40 hours per week minimum, paid monthly. According to the fair work australia ombudsman I fall under the "Manufacturing and Associated Industries and Occupations Award 2010"

    I have been working for my current employer for approximately 3 years. From the beginning it was explained to me that my employer "does not pay overtime", yet "reasonable overtime" (unpaid overtime) may be expected from time to time. Until now I have been ok with this as the amount of extra hours required during the week has mostly been acceptable, ie 3-5 hours maximum once every few weeks. The policy states that a 38 hour week the minimum but I have always been expected to do a 40 hour week. The company also has a policy of offering time off in lieu for any work completed on the weekend or a public holiday but doesn't offer TOIL for extra hours during the week. Invariably the extra hours required are mid week and so end up as unpaid overtime.

    Over the last 2 months I have worked a few 50+ hour weeks and several weeks between 45-50 hours, all of it being work during the week - unpaid. Most recently I was required to have a project completed by COB Thursday and as a result did my regular 40 hours from Monday to Thursday to meet the goal imposed by my manager. With the permission of my supervisor I took the Friday off, however the following week I was informed by my manager that the 8 hours I didn't work Friday would come out of my TOIL balance as I hadn't worked at least 6 hours that day, as is stated in the company policy. This is despite having done my regular 40 hours already for that week.

    My question is - is this legal under Employment Law? After discussing it with the fair work ombudsman and reading the award I not only think this is illegal, it also appears that the company's weekend work only TOIL policy is illegal as is their refusal to pay overtime and the fact their policy states a 38 hour week yet we are expected to do 40 minimum.

    Any help would be greatly appreciated. I don't want to rock the boat or take things to court, I just want to work a normal 40 hour week and have time off to look after myself and exercise as the excessive hours prevent this from happening and as a result my physical and mental health suffers.

    Thanks for your time.
  2. Sophea

    Sophea Guest

    Hi Linelevel,

    It doesn't sound "reasonable" to me. Generally what a court would consider to be reasonable would depend on an examination of all the circumstances and whether a person in your position would consider the additional hours to be reasonable. I would discuss the matter with your employer pointing out what your expectation of "reasonable" is and how their policy appears to be unfair. If you don't succeed in getting what you want that way, try lodging a complaint with the Fair Work Obmudsman.
  3. Serge Gorval

    Serge Gorval Well-Known Member
    LawTap Verified Lawyer

    2 November 2015
    Likes Received:
    The post above is wrong!

    If you are an award covered employee which sounds like you are, any hours worked above 38 hours are considered overtime hours which come under a penalty rate. If you have been working 40 hours over 3 years, your claim could very well be in excess of 10k in unpaid wages.
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