‘Concerned’: Reason 40-hour work week is illegal in Australia

A NSW tradie has exposed a big issue with his work contract – and why Aussies can’t be expected to work 40 hours a week.

Welcome to Sisters In Law, news.com.au’s weekly column solving all of your legal problems. This week, our resident lawyers and real-life sisters, Alison and Jillian Barrett from Maurice Blackburn, help a woman whose boss is making her get a doctor’s note every time she’s sick.

QUESTION: I’m a plumber and I work for a small, family-owned company. When I started, my contract said I worked 40 hours a week and my hours were 8am to 4pm. I’ve been working those hours for over a year and have always logged my hours in the system they use to track our hours.

However, they recently told me that I should be taking a 30-minute unpaid lunch break and working until 4.30pm – they said I should have been doing this for the past year but working until 4.30pm was never discussed when I started. I’m so busy, I always just have my lunch on the run and never take tea breaks.

They’re acting like they’re doing me a favour by not asking for “time back” that I haven’t worked until 4.30pm this past year – but I’ve worked my hours and then some, which they know as I always log my hours.

Is what they’re doing legal? Should I ask them back for all of the unpaid overtime I’ve worked over the past 12 months that they’ve conveniently ignored when I’ve logged it?

– Reece, NSW

ANSWER: Your question raises a few areas of concern for us, Reece.

Firstly, the National Employment Standards (‘NES’), which apply to all employees covered by the national workplace relations system regardless of any award, agreement or contract, establish maximum weekly hours of work for all employees.

Under the NES an employer must not request or require a full-time employee to work more than 38 hours per week, unless the additional hours are reasonable.

I’m a plumber and I work for a small, family-owned company. Picture: iStock

To determine whether additional hours are reasonable, a number of factors are taken into account including:

• Your personal circumstances and the needs of the workplace

• Any risk to your health and safety

• Whether you are entitled to receive overtime payments, penalty rates, or time off in lieu for the additional hours

• Notice given by your employer of the additional hours, and

• Usual patterns of work in the industry

Even though your employment contract stated your hours, your employer may be in breach of the NES and it could amount to underpayment of wages if you’re not receiving overtime payments or penalty rates.

Whether you are entitled to a paid or unpaid rest break or meal break, including the required length of the break and when they should be taken, will be set out in a modern award, enterprise agreement, or other registered agreement.

A number of awards provide for workers to be paid penalty rates where they are required to work through a meal break, until they get one.

You may be covered by the Plumbing and Fire Sprinklers Award or another award or enterprise agreement. You can search for this on the Fair Work Ombudsman website.

We recommend you find out which modern award or enterprise agreement you are covered by, so you fully understand your entitlements. Picture: iStock

As to whether you’re entitled to ask your employer to be paid for overtime you have completed for the past 12 months, over and above the hours in your contract? Again, it will depend on your award or agreement. Also, often employers will require that in order for overtime to be performed it must be approved by them in advance. This protects employers from an employee electing to work extra themselves, just in order to receive penalty rates.

We recommend you find out which modern award or enterprise agreement you are covered by, so you fully understand your entitlements.

You should also review your written employment contract, which can supplement any industrial instrument that applies to your employment.

After you have worked out what you are covered by, you should be able to determine if you should only be working 38 hours per week and if you are entitled to penalty or overtime rates.

The first step would be to raise this with your employer, both verbally and following up in writing, as some disputes can be resolved that way.

Any written correspondence with your employer should outline why you think you are being underpaid, the amount of the underpayment, a detailed calculation as to the total and a request for reimbursement.

A number of awards provide for workers to be paid penalty rates where they are required to work through a meal break, until they get one. Picture: iStock

There are provisions of the Fair Work Act that prevent an employer from taking any “adverse action” (such as termination) against you because you queried your pay.

If you aren’t able to resolve the issue with your employer directly, you should get in touch with your union, speak to a lawyer or lodge a complaint with the Fair Work Ombudsman.

The final step is court. For underpayments of less than $100,000 there are court processes via ‘small claims’ procedures which are less formal and usually quicker than other court proceedings to try to recover the money - for example, in the Federal Circuit and Family Court of Australia.

There are provisions of the Fair Work Act that prevent an employer from taking any “adverse action” (such as termination) against you because you queried your pay. Picture: iStock

For amounts more than $100,000, you can still bring the claim in the Federal Circuit and Family Court of Australia but won’t be able to rely on that less formal process.

Finally, the federal government has introduced a bill called the Closing Loopholes Bill as part of their workplace reforms. If the bill is passed, there will be a new federal offence for wage theft, which targets deliberate wrongdoing by businesses. Victoria and Queensland already have similar laws in place, but these proposed laws would provide consistency nationally.

If passed, wage theft by employers will attract a maximum fine of $7.825 million. The offence and fines will only be for deliberate wrongdoing by businesses, and not those who make honest mistakes, or self-report and take reasonable steps to repay the correct wages.

This legal information is general in nature and should not be regarded as specific legal advice or relied upon. Persons requiring particular legal advice should consult a solicitor. If you have a legal question you would like Alison and Jillian to answer, please email [e-mail]. Get more from Alison and Jillian on their Facebook page.