Wednesday, 19 June 2019

Do Employees Have to be Paid for Being On-call?

Written by Paul Taylor

Reading Time: 3 minutesReading Time: 3 minutes

Not all jobs require the traditional 9 to 5 hours. Many industries require round the clock attention from employees in order to keep things running. Some jobs have irregular hours. Some employees are required to be on-call. Many factors affect whether you can get paid for being on-call. Therefore, it is best to assess this on a case by case basis. Some of factors include:

  • The terms of the employment agreement
  • Type of Award
  • Type of industry
  • Workplace Health and Safety requirements
  • Tax and superannuation requirements

What does it mean to be on-call?

Certain work sometimes requires employees or workers to be ready at times outside their usual shifts. These employees are on-call where unforeseen events may require them to work. This is also known as ‘standing’ or ‘standby’. This is where employees are not at work, but employers will pay them for being nonetheless ready to work. However, being on standby can differ to being on-call. For example, an employer may call an off duty employee to alert them of the fact that they may be required to work. Whereas, being on-call can mean the employee is ready to work in a set period of time despite later notice.

For example, a surgeon may be required to be on-call over the weekend. Standby, however, is where a hospital might call a surgeon to alert them to the fact that they might be needed. Below are some important considerations to make for employers and employees alike.

Actual Employment Agreement

Many of an employee’s entitlements to on-call pay will depend on the employment agreement. The terms of the contract between employer and employee will outline all matters relating to pay. The negotiation process will establish the agreement an employee will come to with their employer. If you are unsure of your rights throughout this process, or when drafting this agreement, it may be advisable that you consult a contract lawyer. Including the appropriate allowances required by law is very important. A factor which may determine some other aspects of your contract are the legal award requirements.

A recent Federal Court of Australia decision held that an employer owed workers time for standing by. Consequently, the actual arrangement between employer and employee is a significant factor when interpreting the employment relationship and conditions.

Type of Award

Awards (modern awards) are legal documents that outline the minimum pay rates and conditions of employment. Accordingly, the type of award will influence the agreement you form with your employer. If you would like to find out more about your award, you can seek further information on the Australian Government Fair Work Ombudsmen website.

Type of Industry

Some industries come to expect more from workers. The nature of the work can make all the difference. If the type of work places great strain on workers, it may be more likely that general practice of on-call allowances will apply. However, if the work is unlikely to create problems for workers in putting aside time to make themselves available, then on-call allowances may be less likely to form.

Workplace Health and Safety Requirements

Furthermore, health and safety requirements in some professions place restraints on how many hours employees can work. Limits on the number of hours employees can work mean it may be less likely you would be paid for being on-call. There is more information on working hours on the Safe Work Australia website.

Tax and Superannuation Requirements

Lastly, your on-call pay will affect for your superannuation. Superannuation on allowances is a legal requirement for employers. The Australian Taxation Office website provides an outline regarding this.

Overall, case by case factors will mostly determine on-call allowances. The specific employment agreement, work contract, type of industry, and award level are all factors to consider when determining whether an employee ought to be paid for being on-call. However, consult an employment lawyer if you are unsure of your rights.

Don’t know where to start? Contact us on 1800 529 728 to learn more about customising legal documents and obtaining a fixed-fee quote from Australia’s largest lawyer marketplace.

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