Overtime for part-timers

What is part-time employment?

Part-time employment is not expressly defined in the Fair Work Act 2009 (FW Act), but most modern awards refer to it as applying to a permanent employee who is engaged to work fewer hours than a full-time employee. A part-time employee’s hours are guaranteed and are usually performed at the same times and days each week.

Entitlements of part-time employees

Part-time employees have the same entitlements as full-time employees calculated on a proportional basis on their hours of work. For example, part-time employees are entitled to four week’s annual leave, at the number of ordinary hours that they would otherwise have worked during the period of leave.

Some factors that indicate part-time employment might include:

• whether the hours are reasonably predictable;
• whether the employee receives similar benefits to full-time employees, but on a pro-rata basis; and
• whether, on commencement of employment, the parties agreed to such things as a regular pattern of work, the days of the week the employee will work and the documentation of any agreement to vary the hours.

Overtime payments

Many awards require the employer and part-time employee to agree in writing on a regular pattern of hours when the employee starts employment. Generally, the written agreement must specify the agreed days of work and the agreed start and finish times. Any hours performed outside of the agreed start and finish times or on a different day may be subject to overtime rates. Employers should check the provisions in the relevant modern award to confirm their obligations.

Can an employer and part-time employee agree to temporarily vary the hours of work?

Many modern awards contain provisions which allow an employer and part-time employee to agree on a variation to the agreed days, start and finish times and hours of work, subject to notice and keeping a written agreement of the variation.

Failure to keep a written record of the variation may make it difficult for an employer to prove that there was agreement to vary the part-time employee’s hours and therefore, require the employer to pay the employee at overtime rates. It is also a breach of the award provisions, and an employer could face penalties.

Case example: Fair Work Commission warns an employer for their failure to pay extra hours as overtime and put working hours in writing

A radiology provider was warned that it risks a civil penalty and underpayment claims if it does not set out part-time employees working days and hours including and start and finish times in writing. It was also warned that it could face a civil penalty and underpayment claims if it requires part time employees to work additional hours without paying overtime rates or having written agreement to vary the hours of work. \

On behalf of the worker, the Health Services Union (HSU) raised a dispute against the employer, Jones Radiology, regarding the allocation of weekend shifts to the part-time radiologist.The difficulty in this case was that the employee’s part-time hours of work were not defined under the existing employment contract.

The radiologist was covered by the terms of the Health Professionals and Support Services Award 2010 (as it was at the time) and clause 10.3(b) required an “agreement in writing on a regular pattern of work”, including the number of hours to be worked each week, the days to be worked and all starting and finishing times.

Background:

The radiologist commenced full-time employment in January 2009. In September 2010, the radiologist agreed in writing to change her employment contract to a part-time role of 60 hours per fortnight. However, the offer did not specify the hours or the days of work.

The Commissioner said that establishing working days and agreed starting and finishing times is an “important requirement, as it determines …. when (in the absence of an agreed variation to the contract of employment) overtime might be payable” under the award and that the employer “appears to have breached section 45 of the Fair Work Act, which is a civil remedy provision.”

In August 2022, the employer and employee agreed to vary the employment contract again, to “45 hours per fortnight plus reasonable additional hours.” In addition, the following clause was added:

“From time to time the Employer may offer you extra shifts in addition to your ordinary hours of work set out above, or you may request additional shifts. In either case, acceptance by you of these additional shifts will include acceptance by you that your ordinary hours for that week will be varied to include the additional shifts and they will be paid at your ordinary rate of pay. Overtime rates will only be paid if you work in excess of 37.5 hours per week (averaged fortnightly) or 7.5 hours per day.

The commissioner noted that the variation appears to also not meet the requirements in clause 10.2 of the 2020 award, and if this is the case, the employer may have again breached section 45 of the FW Act.

The Commissioner was trying to determine whether it was reasonable for the employer to allocate weekend shifts to the employee. However, as there were no defined part-time hours in the employment contract, it was difficult to determine whether such hours were reasonable.

The Commissioner recommended that Jones Radiology and the employee “agree and record in writing the days of the week, and the starting and finishing times that the 45 hours per fortnight under her part-time contract of employment are to be worked.”

“The parties should then consider what the additional shift requirements are and assess whether they are reasonable or not in accordance with section 62(3) of the Act. This would include consideration of the application of overtime and/or penalty provisions.”

Lessons for employers:

This case highlights the importance of complying with award requirements for part-time employees, in particular the requirement to specify the days, hours, start and finish times. Employers should also be mindful the specific requirements of award provisions that allow the parties to agree to vary the part-time employee’s hours of work without the need to pay overtime penalties. Employers with part-time staff should review the part-time clause in the relevant modern award, and check whether the employment contract meets the award requirements.

Health Services Union v Jones Holding Co Pty Ltd T/A Jones Radiology [2023] FWC 240