When To Pay Employees Penalty Rates? What You Need to Know

When To Pay Employees Penalty Rates?: What You Need to Know

As an employer, have you ever wondered when to pay employees penalty rates? In Australia, penalty rates were introduced in 1947. The policy and introduction of penalty rates were encouraged by various unions and state regulatory bodies, including the Australian Council of Trade Unions (ACTU). The purpose of the introduction of penalty rates was that employees should be paid more when they are asked to work outside of their normal working hours.

Changes to workplace environments, types of industries, and the tasks employees are expected to undertake are all contributing factors to changes made to penalty rates since their introduction. Therefore, It’s crucial for employers to stay on top of any changes as industries continue to develop and the law adapts. 

Penalty rates are applied at certain times across the board. However, an employee’s specific circumstances generally determine when they will receive penalty rates.

In this article, we’ll discuss what penalty rates are, when to pay employees penalty rates, factors that determine the penalty rates employees must receive and answers to other frequently asked questions.

Table of Contents

What are penalty rates?

According to the Australian Government’s Fair Work Ombudsman(FWO), penalty rates refer to a higher rate of pay that is provided to employees when they work during specific hours or days. 

Get a free legal document when you sign up to Lawpath

Sign up for one of our legal plans or get started for free today.

When to pay employees penalty rates?

Penalty rates generally apply in the following situations:

  • When an employee works during the early hours of the day
  • When an employee works during the late hours of the night 
  • When an employee works overtime 
  • When an employee works during the weekend
  • When an employee works during public holidays

What factors determine the penalty rate employees need to receive?

Award type

The main factor that determines the penalty rate an employee is entitled to is the award type that applies to them and the industry they work in. An employee’s award type will state when penalty rates apply and how much they are. These will vary significantly from job to job. 

If you want to determine the penalty rate that applies to your industry, you should use the FWO’s penalty rates calculator. Similarly, you can have a look at the FWO’s pay guides to identify the penalty rates that are generally applied within your industry. Furthermore, it’s best practice to familiarise yourself with the award types relevant to you and your industry.

Enterprise agreements and registered agreements

Your penalty rates will be outlined in your enterprise agreement or other registered agreement if your employment is covered by either of these agreements. You can find your enterprise agreement through the Fair Work Commission(FWC).

If you’re covered by an enterprise agreement or other registered agreement, your penalty rates will be in your agreement. To find an enterprise agreement, go to the Fair Work Commission website.

How are penalty rates affected by workplace arrangements?

The following workplace arrangements can have an impact on penalty rates that are provided to employees:

As an employer, you should be aware that the total amount you pay your employee must match the amount they would receive under the agreement or award that applies to them. The amount of pay an employee receives under guarantees of annual earnings, IFAs, salary payments or employment contracts must be adjusted to compensate employees due to them not receiving other penalties and loadings they would under the award that would apply to them.

What are overtime payments?

Overtime payment refers to the payment that is provided to employees for any work they perform outside their regular working hours outlined in their agreement or award. The pay rate that employees receive for working overtime is generally higher than their regular pay rate.

An example of when overtime penalty rates would employee include times employees have to work beyond the typical 9 – 5 hours. As a general rule, any hours that an employee works beyond the standard 8 hours begins to get assessed as overtime of some form. Overtime hours can also apply to early mornings and late finishes, regardless of the number of hours worked.

When overtime penalty rates apply depends on the award or registered agreement that applies to the employee. You can find out when overtime applies within your industry through the FWO. Similarly, you can use the FWO’s Pay and Conditions Tool to calculate the overtime rate you have to pay your employee.

As an employer, you should be aware that you can provide your employee with time off instead of providing them with overtime payments. However, whether you can do this will depend on the award or registered agreement that the employee is covered by. 

When are employees provided with allowances and other payments?

Allowances refer to additional payments that are provided to employees due to special circumstances. Allowances are provided to employees in the following situations:

  • Where an employee is required to perform a specific task
  • Where an employee possesses a specific skill that is used on the job
  • Where an employee has to work with their own tools
  • Where the employee’s working conditions are hazardous or unpleasant
  • Where the employee has to incur expenses to perform their duties

The following allowances are common:

  • Equipment and tools
  • First aid kits
  • Medical assistance
  • Special clothing and uniforms
  • Laundry or cleaning costs
  • The cost of travel, fares and tollways
  • Cars and phones provided by the company
  • Any other associated costs for working in a particular industry
  • Meal allowances
  • Leading hand or supervisor

The allowances that are provided to an employee depend on the award or industry that applies to them.

How do employment agreements impact the allowances an employee will receive?

As long as the main minimum workplace entitlements are satisfied under the Fair Work Act 2009, additional terms such as allowances can be included in the employee’s employment contract. As each situation or business structure is different, it is important to assess the allowances that should be provided to an employee on a case-by-case basis. Some employment agreements might offer up greater allowances for penalty payments than the usual standard. 

As an employer, you might prefer certain arrangements over others and choose to include those in an employee’s employment agreement. For example, an employment agreement could specify a lower ordinary salary but with higher penalty rates if an employee is likely to work some obscure hours. Therefore, it’s crucial for both employers and employees to ensure they both fully understand the terms of the agreement. 

During this process, you might want to hire a lawyer to ensure you have properly understood the contractual terms and to ensure both parties are in agreement with the terms to avoid consequences down the track. 

Furthermore, as an employer, it’s also important to note that penalty rates may still apply even where your employee is on a salary package.

Frequently Asked Questions

What penalty rates do employees receive on weekends? 

Weekend penalty rates refer to higher pay rates provided to employees working on the weekend. In general, employers are required to provide employees who work on Saturdays with 1.5 times their regular pay rate, and they are required to pay employees who work on Sundays double their regular pay rate. For example, if an employee receives $30 an hour for their regular pay rate, they would receive $45 an hour on Saturdays and $60 an hour on Sundays. 

However, the exact weekend rate you must provide your employee will depend on the award that is applied to them. 

What penalty rates do employees receive on public holidays?

Employers are required to pay employees who work on public holidays a penalty rate that is higher than the regular rate of pay. The public holiday rate an employee receives is determined by their award and the industry in which they work. To determine the penalty rate, you must pay your employee use the FWO pay calculator.

Do employees have to be paid extra for working in dangerous work conditions?

When employees have to undertake dangerous or unpleasant work, penalty rate payments may apply. There are some jobs that are tougher than others, and that may mean a higher base salary. Despite the lucrative salary, it may not always be enough. Therefore, employees may be provided with allowances and additional payments.


Overall, as an employer, you should be aware that penalty rates can apply in many circumstances, even when you think they don’t. However, what remains clear is that it is the employer’s responsibility to ensure all employee entitlements are met. As an employer, if you’re still feeling unsure about when to pay employees penalty rates, you should hire a lawyer for legal advice to avoid legal consequences.

Similarly, if you’re an employee and you’re unsure when your employer should pay you penalty rates or you believe your employer has avoided paying you penalty rates, you should hire a lawyer for legal advice.

Find the perfect lawyer to help your business today!

Get a fixed-fee quote from Australia's largest lawyer marketplace.

Most Popular Articles
You may also like
Recent Articles

Get the latest news

By clicking on 'Sign up to our newsletter' you are agreeing to the Lawpath Terms & Conditions


Register for our free live webinar today!

Price of Justice: Paying the Right Price for Legal Expertise

12:00pm AEDT
Tuesday 30th April 2024

By clicking on 'Register for webinar' you are agreeing to the Lawpath Terms & Conditions

You may also like

Thank you!

Your registration is confirmed. Keep an eye on your inbox for an email with details on how to watch the webinar.