Professionals must accept the “rough and smooth” of working outside the normal working hours

There has been significant discussion around working outside normal business hours (9:00 am to 5:00 pm) and whether those extra hours should be paid as either overtime or time off in lieu (TOIL).

In a decision by Commissioner Mathews in the Western Australian Industrial Relations Commission, the Commissioner made it abundantly clear that employees who work in “professional” roles (such as a certified practicing accountant) need to accept that in the real world there is the “rough and smooth” in the life of a person employed as a professional.

In the case of Albert Scholten v MVP Accountants & Advisors Pty Ltd [2007] WAIRC 00324 (13 June 2017) (MVP Case), the applicant was an accountant who earned $115,000.00 a year at the time of his resignation. During his time in employment, like in many other accounting practices, he was required to work outside the normal working hours to meet his billable hours. There was no expectation on him to work a certain amount of hours it was just to achieve his billable target.

Unfortunately, the applicant claimed TOIL for the hours he worked outside of the 9:00 am to 5:30 pm normal work hours or span of office hours. Commissioner Mathews was quite adamant in his decision and in his view the applicant’s claim was a “try on”.

Apart from being a professional who would be reasonably expected to work extra additional hours there was also a reference in the employment contract (which is not unusual) making it clear that as a professional person (and of a person employed in his position), he would need to make himself available outside of the normal working hours.

Not surprisingly, the applicant’s claim for TOIL was flatly rejected.

The MVP Case decision supports the long-standing view that in many positions, especially those in professional positions, and of those that are paid well above any minimum award payments or are in senior and management positions; there will be expectations to potentially work outside of the normal work hours.

Precautions you need to take as an employer

For employers and advisers who will be employing staff (and advising their clients to employ staff) in these senior positions, it’s crucial that the following precautions are in place to ensure that if a claim like the MVP Case were ever brought up, it would be flatly rejected too.

    1. Ensure there is a written employment contract with clauses covering the requirement that an employee may need to make themselves available for work outside of the normal work hours;
    2. Ensure there is no ambiguity in any of your contractual documentation and policy documentation regarding hours of work especially if you have an organisation which has billable targets;
    3. If you wish to have a separate arrangement for an employee to be paid overtime or allowed time off in lieu for working outside of the normal work hours, ensure this is reflected in either the employment contract or in separate documentation; and
    4. If an employee has an enquiry or complaint regarding TOIL or unpaid overtime, deal with it immediately. Don’t allow it to fester into a potential situation that may lead to a dispute or in more serious circumstances a general protections claim.

Have you taken the proper precautions to ensure your organisation is protected from a General Protections claim? Call NB Lawyers, the lawyers for employers, on +61 (07) 3876 5111.

About the Author

Jonathan Mamaril is the principal and director of NB Lawyers, the lawyers for employers, and a specialist in employment law. Over the last ten years, Jonathan has helped hundreds of employers understand their legal requirements, mitigate risk and liability, protect their reputation and achieve their goals for business growth and expansion.