Not all jobs require the traditional 9 to 5 hours. Some jobs have irregular hours and require employees to be on call to keep things running. But, do employees need to be paid for being on-call? Even if they are not actually preforming their job duties?
This post will cover everything you need to know regarding on call entitlements in Australia and factors that affect whether you can get paid for being on-call.
Read along!
What is the definition of employees who are “paid for being 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 nonetheless, for being ready to work.
The Actual Employment Agreement
Many of an employee’s entitlements to on-call pay will depend on the employment agreement. This is where the employer places and outlines the appropriate employment standards. 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.
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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, and the conditions you are entitled to even where those are omitted from the agreement.
Awards vary from industry to industry, and it is important to look at the relevant award to determine the employee’s on-call entitlements.
Some industries require on-call workers to a greater degree, and some awards have been made with greater consideration of the effort required by employees in putting aside time to make themselves available.
If you would like to find out more about your award, you can seek further information through the Australian Government Fair Work Ombudsman.
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 may also apply to the amount of hours workers can be 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 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.
It is always a good idea to consult an employment lawyer if you are unsure of your rights.
How much do employees have to be paid for being on call?
Whether an employee is considered to be on-call during a particular time depends on the specific circumstances.
If an employee needs to stay on a worksite and wait until something comes up they are entitled to payment. The line gets a little bit blurry when an employee is on-call but not at work. But, generally speaking the less freedom an employee has the stronger the case for them being on-call. Similarly, being on-call during annual leave, sick leave or personal leave is usually negotiated within the employment contract.
So, with that being said, payment for being on call really depends on what is outlined and negotiated in the employment contract, with the award providing a bottom line.
Moreover, an employee required to work outside their ordinary hours qualifies for the appropriate overtime rates even on public holidays.
Frequently asked questions (Q&As)
What if an employee is on call for 8 hours, but only works for 2?
On call employees are employees that are required to be available for any period outside their ordinary hours of work, and are entitled to be paid for that period at a particular rate.
If the employee is required for 2 hours of work outside of those ordinary hours then they are entitled to overtime rates for their actual work time. The rate of pay is determined by the appropriate state and federal laws that are applicable in their unique situation.
Key Takeaways
An employee’s right to remuneration depends on factual circumstances that determine whether they are working or “on-call”, according to the employment agreement or the relevant award.
Both the employer’s resources and employees’ time is valuable within both big and small businesses, so it is important to assess your on-call arrangements to make sure they work for you.
If you are struggling to determine if an employee is on call or not, it is best to consult an employment lawyer with a good understanding of employment laws.
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