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Australia - Working time - 2011


LAST UPDATE

7 March 2011

SOURCES


Name of Act

Fair Work Act 2009, Act No. 28 of 2009, incorporating amendments up to Act No. 51 of 2010
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Name of Act

Fair Work Regulations 2009 No. 112, incorporating amendments up to SLI 2010 No. 99

Other source used

Fair Work (State Declarations - employers not to be national system employers) Endorsements 2009 and 2010
Sets out employers who remain outside the national system despite referral of power by relevant State
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LEGAL DEFINITIONS


Working time/working hours

The term ’working time’ or ’working hours’ is not defined by the Fair Work Act 2009. However, ’working day’ is defined as a day that is not a Saturday, a Sunday or a public holiday. Further, for the purposes of the statutory limitation on working hours, an employee’s working hours include any hours of authorised leave or absence, whether paid or unpaid.
Fair Work Act 2009 §§12, 62(4)

Employee/worker

For the purposes of the working time provisions, an employee includes a person employed:
(a) by a constitutional corporation;
(b) in Victoria, the Northern Territory or the Australian Capital Territory by any employer;
(c) in New South Wales, Queensland, South Australia or Tasmania by any employer other than the relevant State government or prescribed authority;
(d) by the Commonwealth or a Commonwealth authority; or
(e) in connection with interstate or overseas trade or commerce as a waterside employee, maritime employee or flight crew officer.
Fair Work Act 2009 §§ 13, 14, 30C, 30D, 60
Fair Work (State Declarations) Endorsements 2009 and 2010
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Employer

For the purposes of the working time provisions of the Fair Work Act 2009, employer includes:
(a) a constitutional corporation;
(b) any employing entity in Victoria, the Northern Territory or the Australian Capital Territory;
(c) any employing entity in New South Wales, Queensland, South Australia or Tasmania, other than the relevant State government or prescribed employer;
(d) the Commonwealth or a Commonwealth authority; or
(e) an entity which usually employs a waterside employee, maritime employee or flight crew officer in connection with interstate or overseas trade or commerce.
Fair Work Act 2009 §§ 14, 30D, 60
Fair Work (State Declarations) Endorsements 2009 and 2010

Overtime/overtime work

Overtime is not defined by the Fair Work Act 2009. It is envisaged that, where applicable, the hours that constitute overtime, and the rates payable, will be provided for at an industry level.
Fair Work Act 2009 §139

Shift work(er)

A shift worker is defined as an employee who is employed in a business where shifts are continuously rostered 24 hours a day for 7 days a week and where he is regularly rostered to work those shifts or where he regularly works on a Sunday or public holiday.
Fair Work Act 2009 § 87

Domestic worker

The Fair Work Act 2009 does not define domestic worker, or make any specific provision particular to their employment.

NORMAL HOURS LIMITS

The Fair Work Act 2009 prescribes maximum weekly hours as part of the National Employment Standards.
Fair Work Act 2009 Division 3 of Part 2-2 of Chapter 2

Daily hours limit

The Fair Work Act 2009 does not impose a limit on daily working hours.

Weekly hours limit

The National Employment Standards prescribe the maximum weekly hours of work.
Fair Work Act 2009 Division 3 of Part 2-2 of Chapter 2

General limit

An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full-time employee - 38 hours; or
(b) for an employee who is not a full-time employee - the lesser of 38 hours and the employee’s ordinary hours of work in a week.
Fair Work Act 2009 § 62
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Historical data (year indicates year of data collection)
  • 2009: 38 hours and reasonable additional hours. Hours of leave or absence, whether paid or unpaid are considered hours of work if they are authorised by the employer, by the employment contract or by a legal provision. To determine whether additional hours an employee is required or requested to work are reasonably, all relevant factors must be taken into account. Those are: any risk to the worker's health and safety; the worker's personal circumstances (including family responsibilities); the needs of the workplace or enterprise; whether the employee receives overtime payments; notice given by the employer of any request or requirement to work the additional hours; any notice given by the worker of his or her intention to refuse additional hours; usual patterns of work in the industry; nature of the employee`s role; whether the additional hours are in accordance with averaging terms included in a modern award or enterprise agreement that applies to the employee; any other relevant matter.
  • 2007: 38 hours and reasonable additional hours To determine whether additional hours an employee is required or requested to work are reasonably, all relevant factors must be taken into account. Those factors may include, but are not limited to: (1) any risk to the worker's health and safety; (2) the worker's personal circumstances (including family responsibilities); (3) the operational requirements of the workplace, or enterprise, in relation to which the worker is required or requested to work the additional hours; (4) any notice given by the employer of the requirement or request to work additional hours; (5) any notice given by the worker of his or her intention to refuse additional hours; (6) whether any additional hours are on a public holiday; (7) the worker's hours of work over the four weeks immediately prior to the requirement or request to work additional hours.
  • 1995: 38 hours on average.

Reference period(s)

An employee’s working hours may be averaged over a specified period where provided for by an award or enterprise agreement or agreed in writing between the employee and employer. Where by written agreement only, the maximum specified period is 26 weeks.
Fair Work Act 2009 §§63-64

OVERTIME WORK

The Fair Work Act 2009 does not regulate overtime, beyond requiring that any additional hours requested or required by an employer must be reasonable.
Fair Work Act 2009 §62

Criteria for overtime

The Fair Work Act does not prescribe what will constitute overtime work. It is envisaged that this will be determined at an industry level in modern awards.
Fair Work Act 2009 § 139

Limits on overtime hours

The only limit on overtime hours prescribed by the Fair Work Act 2009 is that additional hours requested or required by an employer are to be reasonable. An employee may refuse a request to work unreasonable additional hours. Further limitations may be prescribed by the relevant award or enterprise agreement
Fair Work Act 2009 §§62, 139

Compensation for overtime work

Overtime rates are to be set by the relevant modern award.
Fair Work Act 2009 §139

Notice of requirement to work overtime

Notice requirements are generally set at an industry or enterprise level. However, the amount of notice given to an employee with regards to a request or requirement to work additional hours is relevant to the reasonableness of the request or requirement.
Fair Work Act 2009 §§62, 139

SCHEDULES

It is envisaged that work schedules will be set at an industry or enterprise level.
Fair Work Act 2009 §139

REST PERIODS

The Fair Work Act 2009 does not make provision for rest period entitlements. It is envisaged that rest periods will be set by the relevant modern award.
Fair Work Act 2009 §139

Rest breaks

It is envisaged that rest breaks are set at an industry level in modern awards.
Fair Work Act 2009 § 139

Daily rest periods

The Fair Work Act 2009 does not prescribe minimum daily rest periods.

Weekly rest periods

The Fair Work Act 2009 does not prescribe minimum weekly rest periods.

ANNUAL LEAVE AND PUBLIC HOLIDAYS

The National Employment Standards provide a statutory entitlement to annual leave and public holidays.
Fair Work Act 2009 Divisions 6 and 10 of Part 2-2 of Chapter 2

ANNUAL LEAVE

All employees other than casual employees have a statutory entitlement to annual leave.
Fair Work Act 2009 §86

Qualifying period

There is no qualifying period for annual leave. Annual leave entitlements accrue progressively throughout a year of service, according to the employee’s ordinary hours of work.
Fair Work Act 2009 §87(2)

Duration

For each year of service with his or her employer, an employee is entitled to 4 weeks of paid annual leave, unless the employee is a shiftworker, in which case he or she is entitled to 5 weeks of paid annual leave.
Fair Work Act 2009 §87

» Exceptions

Annual leave entitlements may be cashed out in accordance with the terms of an applicable modern award or enterprise agreement where agreement is reached between the employer and employee and the employee will have at least 4 weeks’ annual leave entitlement remaining.
Fair Work Act 2009 §§92, 93, 94

Payment

Payment is to be made at the employee’s ordinary rate of pay.

» Amount

The employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work in the period.
Fair Work Act 2009 §90

» Date of payment

The Fair Work Act 2009 does not make provision for the date of payment of annual leave entitlements.
Fair Work Act 2009

Schedule and splitting

Paid annual leave may be taken for a period agreed between an employee and his or her employer. The employer must not unreasonably refuse to agree to a request by the employee to take paid annual leave.
Fair Work Act 2009 §88

Special categories


» Shift work

Shift workers are entitled to 5 weeks of annual leave. For the purposes of the annual leave entitlements, a worker is a shift worker if he or she is:
(a) defined or described as such by an applicable modern award or enterprise agreement; or
(b) regularly rostered to work shifts in a 24/7 schedule, and regularly works on Sundays and public holidays (unless in a class of workers excluded from the additional entitlement by the regulations); or
(c) in a class of workers prescribed as shift workers by the regulations.
Fair Work Act 2009 §87(1)(b), (3) and (4)
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» Young workers

A modern award or enterprise agreement may replace the annual leave entitlement for school-based apprentices or school-based trainees with paid loadings in lieu of paid annual leave.
Fair Work Act 2009 §126

» Domestic work

There are no provisions specific to domestic workers in the Fair Work Act 2009. To the extent that domestic workers are engaged to work in a State or Territory which has referred its industrial relations powers to the Commonwealth (all but Western Australia), the domestic worker is entitled to the annual leave entitlements provided by the National Employment Standards.
Fair Work Act 2009 §§30C, 30D, 60

» Pregnant workers/recent birth

Workers may use their annual leave entitlements while on unpaid parental leave without affecting the continuity of the period of unpaid parental leave.
Fair Work Act 2009 §79
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PUBLIC HOLIDAYS

An employee is entitled to be absent from work on a public holiday.
Fair Work Act 2009 §§ 114

Number and dates

Eight annual public holidays are prescribed by the Fair Work Act, with provision being made for further public holidays to be set at a local level.

The dates prescribed federally are: 1 January (New Year’s Day), 26 January (Australia Day), Good Friday, Easter Monday, 25 April (Anzac Day), the Queen’s Birthday (date differs between states and regions), 25 December (Christmas Day) and 26 December (Boxing Day).
Fair Work Act 2009 §115

Payment

Where an employee is absent from work on a public holiday, he or she is entitled to be paid at the employee’s base rate of pay for his or her ordinary hours.
Fair Work Act 2009 §116
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Work on Public Holidays

The employer may request the employee to work on a public holiday, but the employee may refuse to work if the request is unreasonable or the refusal is reasonable.
Fair Work Act 2009 §114

» Criteria

In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
(b) the employee’s personal circumstances, including family responsibilities;
(c) whether the employee could reasonably expect that the employer might request work on the public holiday;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
(e) the type of employment of the employee (e.g. full-time, part-time, casual or shiftwork);
(f) the amount of notice given by the employer when making the request;
(g) the amount of notice given by the employee when refusing the request;
(h) any other relevant matter.
Fair Work Act 2009 §114(4)

» Compensation

The Fair Work Act 2009 does not prescribe a rate of compensation to be paid in the event that an employee works on a public holiday. However, his or her entitlement to overtime pay is relevant to determining the reasonableness of a request and/or a refusal to work on such a day.
Fair Work Act 2009 §114(4)(d)

EMERGENCY FAMILY LEAVE

There are three types of emergency family leave to which an employee may be entitled.

The first is an entitlement to 10 day of paid personal/carer’s per year of service, which accrue progressively and accumulate from year to year and may be taken in the event that an employee is unfit for work or needs to care for an immediate family or household member. This entitlement does not apply to casual employees.

The second is an entitlement to up to 2 days of unpaid personal/carer’s leave, which arises where an employee needs to care for an immediate family or household member but does not have any (remaining) entitlement to paid personal/carer’s leave. This entitlement applies to all employees, including casual employees.

The third is an entitlement to days of compassionate leave for each
occasion (a permissible occasion) when a member of the employee’s immediate family, or a member of the employee’s household:
(a) contracts or develops a personal illness that poses a serious threat to his or her life; or
(b) sustains a personal injury that poses a serious threat to his or her life; or
(c) dies.
The entitlement to compassionate leave applies to all employees, but casual employees are not entitled to pay for the relevant period.
Fair Work Act 2009 Division 7 of Part 2-2 of Chapter 2

PART-TIME WORK

It is envisaged that provision will be made for part-time work arrangements at an industry level in modern awards.
Fair Work Act 2009 §139

NIGHT WORK

The Fair Work Act does not deal with night work arrangements.

SHIFT WORK

It is envisaged that shift work arrangements will be provided for on an industry level.
Fair Work Act 2009 §139

ON-CALL WORK

No provision is made for on-call work arrangements in the Fair Work Act 2009.

FLEXITIME

The Fair Work Act 2009 does not provide for flexitime work arrangements.
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CASUAL WORK

The general weekly limit on working hours applies to casual employees.
Fair Work Act 2009 Division 3 of Part 2-2

Annual leave

Casual employees are not entitled to annual leave.
Fair Work Act 2009 §86

SHORT-TIME WORK/WORK-SHARING

No provision is made for short-time or work-sharing arrangements in the Fair Work Act 2009.

RIGHT TO CHANGE WORKING HOURS

Modern awards and enterprise agreements are required to contain a ’flexibility term’, permitting individual employers and employees to vary the effect of the instrument in relation to the employee and the employer, in order to meet the genuine needs of the employee and employer. The change may be made at any stage in the employment relationship, subject to the parties’ agreement.

There is also a right for parents of children under school age, or parents of children with a disability who are under 18 years, to request a change to their hours of work to assist them meet their carer responsibilities in relation to that child.
Fair Work Act 2009 §§144, 202, 65

INFORMATION & CONSULTATION

There is no statutory entitlement to information or consultation with regards to the setting of working hours in the Fair Work Act 2009. However, all enterprise agreements are required to contain a consultation term that requires the employer or employers to which the agreement applies to consult the employees to whom the agreement applies about major workplace changes that are likely to have a significant effect on the employees; and allows for the representation of those employees for the purposes of that consultation.
Fair Work Act 2009 §205
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Results generated on: 03rd September 2014 at 04:15:29.
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