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In our previous blog “Time to be professional” we reported on the variations to Professional Employees Award 2020 (the Award) proposed by the Full Bench of the Fair Work Commission (FWC).

In January 2023, the Full Bench proposed that it was appropriate to vary the Award to:

• Confirm the ordinary hours of work are 38 hours per week;
• Include overtime and penalty rates provisions;
• Require employers to keep records of hours worked by employees in excess of 38 hours per week, outside of 6am to 10pm Monday to Saturday, and on Sundays or public holidays; and
• Introduce exemptions to award provisions for employees who have a contractual entitlement to an annual salary which is 25% or more than the minimum annual wage for the appropriate classification.

(see Variation of Professional Employees Award 2020 on Commission's own motion [2023] FWCFB 13, 5 February 2023)

The FWC issued draft determinations to the proposed variations and invited relevant parties to provide submissions. A number of employer industry groups and an employer filed submissions in relation to the proposed variations and draft determinations.

In its March 2023 decision in Variation of Professional Employees Award 2020 on Commission's own motion [2023] FWCFB 13, the FWC has confirmed its decision to vary the Award in relation to the hours work and overtime provisions and the coverage provisions.

While the FWC rejected submissions in relation to its conclusions and variations proposed in the January 2023 decision, it determined to make minor amendments to the proposed variations which are to take effect on the first full pay period on or after 16 September 2023.

In summary, the variations are as follows:

1. The ordinary hours of work are 38 hours per week. An employer and employee can agree that the ordinary hours of work will be averaged over a period of up to 13 weeks.
2. Payment of overtime to employees who work in excess of 38 hours (or an average of 38 hours per week over the period agreed). Overtime will include work associated with call backs, performed on electronic devices or performed remotely.
3. Employees who perform remote work outside of ordinary hours are required to maintain and provide a timesheet or record specifying the time worked and description of work undertaken.
4. Provisions allowing an employer and employee to agree to time off instead of payment for overtime.
5. Payment of penalty rates for work performed before 6am or after 10pm Monday to Saturday, and on Sundays or public holidays.
6. Requirement for employers to keep records of overtime hours performed and worked outside of 6am to 10pm Monday to Saturday, and on Sundays or public holidays.
7. Exemptions to the new provisions for employees who have a contractual entitlement to an annual salary which is 25% or more than the minimum annual wage for the appropriate classification.

Lessons for employers

It will be important for employers who have employees who are covered by the Award to ensure that they are ready to comply with the new provisions before September 2023. To do this, employers should undertake a review of the remuneration of Award covered employees to ensure that employees are sufficiently remunerated for the hours of work performed and to determine whether the provisions apply.

If the provisions do apply, then employers need to have in place a system to comply with the record keeping requirements for overtime work and work performed outside of ordinary hours.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.