1 March, 2023
The Fair Work Commission has recently decided that it will vary the Professional Employees Award 2020 to refine its coverage and to provide a greater safety net for those employees covered by the Award who frequently work in excess of 38 hours per week.[1]
The Fair Work Commission has at its own initiative considered two issues in relation to the Professional Employees Award 2020 (“Award”):
(a) hours of work and overtime; and
(b) whether the coverage of the Award and the classifications are clear.
The Award has both occupational and industry coverage. The occupational coverage includes employees who perform professional engineering and professional scientific duties; and the industry coverage includes employers in the information technology industry, the quality auditing industry, the telecommunications services industry, and medical research institutes (and their relevant employees who are captured within the classifications of the Award).
We briefly describe the Commission’s decision below.
The Commission has decided that it is appropriate to vary the Award to provide the following (summarised):
Unless the employee’s contract provides an annual salary that is 25% or more in excess of the minimum annual wage under the Award for the employee’s classification:
(a) Employees must be paid for all hours worked in excess of 38 per week (at least at their appropriate hourly rate under the Award). This will include when the employee has left the workplace and is called to undertake more work, whether by returning to the workplace or assisting on the phone. (b) Employees will be entitled to a 115% penalty rate (plus the casual loading for casual employees) for all hours worked before 06:00 and after 22:00 on any day Monday to Saturday.
(c) Employees will be entitled to a 150% penalty rate (plus the casual loading for casual employees) for all hours worked on a Sunday or public holiday.
(d) Records must be kept of all hours worked which fit within any of the above three categories.
While the Commission has not decided to vary the classification definitions themselves, it has decided to clarify that an employee performing professional engineering duties or professional scientific duties—or employees performing professional information technology duties or quality auditing duties for employers in the information technology, quality auditing, or telecommunications services industry—must be classified in one of the Award’s classifications (unless the person is employed in a wholly or principally managerial position).
Employers should first confirm whether their employees are covered by the Award. If they are, employers should review those employees’ contracts and salaries to determine whether the employees may soon be entitled to additional pay and penalty rates (depending on their hours of work).
The Commission has not yet indicated when these amendments will come into effect (with the opportunity to make submissions having closed on Friday, 10 February 2023) but we expect it will be within the coming months.
This EMA Note is not comprehensive advice about your situation and does not cover all your obligations. If you require further information or advice, please contact your Consultant.
[1] Variation of Professional Employees Award 2020 on Commission’s own motion [2023] FWCFB 13.
EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.
