employment australia
Interpretation of Employment Award
<p>Australia has the General Retail Industry Award:</p>
<p>Specifically regarding overtime:</p>
<p><a href="http://awardviewer.fwo.gov.au/award/show/MA000004#P778_67718" rel="nofollow noreferrer">http://awardviewer.fwo.gov.au/award/show/MA000004#P778_67718</a></p>
<p>My question is specifically around overtime for casual employees.</p>
<p>29.2 -c - iii</p>
<blockquote>
<p>(c) Hours worked by casual employees:</p>
<p>(i) in excess of 38 ordinary hours per week or,where the casual employee works in accordance with a roster,in excess of 38 ordinary hours per week averaged over the course of the roster cycle;</p>
<p>(ii) outside of the span of ordinary hours for each day specified in clause 27.2;</p>
<p>(iii) in excess of 11 hours on one day of the week and in excess of 9 hours on any other day of the week;</p>
<p>shall be paid at 175% of the ordinary hourly rate of pay for the first three hours and 225% of the ordinary hourly rate of pay thereafter (inclusive of the casual loading).</p>
</blockquote>
<p>This final clause <code>(iii)</code> in particular:</p>
<blockquote>
<p>in excess of 11 hours on one day of the week and in excess of 9 hours on any other day of the week;</p>
</blockquote>
<p>There seems to be several interpretations to this:</p>
<ul>
<li>Work 10 hours shifts for 7 days, you get paid 1 hour overtime for 6 of those days (as one did not hit 11 hours, you don't get overtime for that day).</li>
<li>Work 10 hours shifts for 7 days, you get no overtime, because you did not meet both the 11 hour and 9 hour conditions</li>
<li>Work a 12 hour shift on the monday, and 10 hour shifts for the rest of the week, you get 1 hour overtime for every day</li>
<li>Work a 12 hour shift, then a 13 hour shift, then 10 hour shifts for the rest of the week... you get 1 hour for the 12 hour shift, 4 hours for the 13 hour shift, and one our for the rest (we count the first instance of being over 11 hours).</li>
<li>Work a 12 hour shift, then a 13 hour shift, then 10 hour shifts for the rest of the week... you get 3 hour for the 12 hour shift, 2 hours for the 13 hour shift, and one hour for the rest (we count the shift with the most amount of hours as the &quot;11 hour&quot; shift).</li>
</ul>

<p>I am not aware of Australian case law regarding this, but I will outline the rationale I would present for judicial interpretation of the [statutory?] language.</p>

<p>None of the bullet points in your question requires interpretation of (iii): in each case, the total amount of hours in a week exceeds 38, thereby triggering the application of (i). But I gather that the last bullet encompasses the sense of your question <em>whether the calculation of overtime depends on the sequence of schedules</em>. The answer is no.</p>

<p>The language in (iii) has no indication that the 11-hour schedule needs to precede the 9-hour schedule even if it is written in that order. Notice how (iii) is in terms of "<em>any <strong>other</strong> day</em>" instead of "<em>a <strong>later</strong> date</em>". The term "<em>other</em>" is more flexible or wider encompassing --in terms of chronology-- than a term such as "<em>later</em>".</p>

<p>Thus, as an example, suppose an employee worked three days giving a total of 27 hours in a week. Clearly he did not exceed 38 hours (also assume for simplicity that (ii) and the clause on "roster cycle" are inapplicable). If the employee's schedules were 10, 10, and 7 hours, he gets no overtime because he never exceeded 11 hours.</p>

<p>By contrast, if the employee's schedules were 12, 2, and 13 hours, respectively, then gets (13-11) + (12-9) = (13-9) + (12-11) = 5 hours at overtime rate. The language in (iii) allows for subtracting 11 and 9 hours from either of the 13- and 12-hour schedules interchangeably (also notice that the 2-hour schedule plays no role in the calculation).</p>
