Can IT Contractors Be Denied Penalty/Overtime Rates?

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  Hybroid on 12/03/2022 - 18:51

  +7

  If OT is not explicitly stated in the employment contract, then the employer is not obliged to pay uninstructed overtime and the employee is not obliged to carry out overtime tasks.

  What should happen is a discussion with their line manager or HR if the current work tasks are taking longer than the agreed contract hours and to come to an agreement.

• 

  elgrande on 12/03/2022 - 18:53

  +4

  What does their contract say? They are not covered by fairwork, as they are a contractor not an employee.

  Not legal advice

  • 

    timthetoolman on 12/03/2022 - 19:42

    I see this all the time, IANAL.
    Are there actually people who act on the advice of strangers here, then when something goes wrong they say 'but but elgrande from Oz bargain said so!' etc?
    Is it not obvious to take peoples opinions with a grain of salt?

    • 

      mskeggs on 13/03/2022 - 00:04

      Lawyers and financial advisers (the other place we see this) can get in trouble from their regulators if they offer advice without properly getting all the information. I don’t know if the disclaimers are effective, but they would certainly argue they were just giving general advice.
      I think it is interesting that doctors don’t post a suggestion with “not medical advice”.

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  animasoIa on 12/03/2022 - 18:59

  Thanks guys! That kinda clears things up. They don't really mind as the rate is pretty decent, and at least they are getting actual pay for a few hours overtime. Just wondered about penatly/overtime rates if they are applicable in this scenario (IT contracting) if not stated in the contract.

  • 

    Quantumcat on 14/03/2022 - 08:24

    It should be in the contract. You usually have to ask permission in advance to work overtime (eg deadline coming up and delays were outside your control). If your friend is just working overtime when they feel like it, it won't be paid, you can't just work extra and get extra money, it would have to be approved. But they need to read their contract to find out what permission is needed from whom and how long the notice is to request it.

    • 

      animasoIa on 14/03/2022 - 09:10

      It was management who asked for them to work more due to a project release, so yes all of these are pre-approved.

      • 

        Quantumcat on 14/03/2022 - 09:33

        That's good, they should just be able to enter their hours in their timesheet and be paid then!

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  AndyC1 on 12/03/2022 - 19:07

  +1

  Most IT contracts (not permanent or part time employees) have a rate per hour and as such this rate is about 30% higher than a full time job for 37.5 hours. If the contractor works more then they get the same rate.

  • 

    Quantumcat on 14/03/2022 - 08:26

    Only if approved by management, you don't get to work more to get more money when you feel like it

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  tsunamisurfer on 12/03/2022 - 19:09

  +2

  I have been contracting for over a decade.

  If their contract is similar to the standard ones I have seen where its a daily rate then there is no set allowance for OT.

  You can charge for OT when you discuss it with your manager. Most contracts are written in favour of the employer where they say additional hours as required.

  Most employers are reasonable where if the OT is excessive they are happy to pay.

• 

  dogboy on 12/03/2022 - 20:00

  +1

  If you are on a daily rate then some reasonable OT is expected if needed to deliver on a project. If the OT is excessive then this needs to be raised as it may require a renegotiation of the original contract. Most employers are open to these discussions from my experience if there is clear evidence of the OT and pressure on project timelines/delivery.

  If on hourly rate, then any OT usually needs approval as you would charge them.

  • 

    JimmyF on 12/03/2022 - 20:55

    If you are on a daily rate then some reasonable OT is expected if needed to deliver on a project. If the OT is excessive then this needs to be raised as it may require a renegotiation of the original contract.

    I had that one once….Day rate contract, wanting to then schedule me for 3 hours 'work' in the evenings after I went home. So we discussed payment etc, they are like, you're a day rate. I'm like yes, a day rate. I come in and work a '8 hour' day of work, if I have to stay back an hour or two to fix something that is broken, finish a task I should have gotten done during the day, then that is part of the day rate, but once I walk out, the day is 'over'. If you want to schedule me to work again that day, then you pay or I start my day later so it covers this scheduled evening work window.

    Funny enough, they coughed up the money to pay OT.

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  animasoIa on 12/03/2022 - 20:07

  Thanks guys. OT is a reasonable duration, around 3-4 hours extra per day, and a full day on weekends (around 7 hours). Thankfully, employer is willing to pay 0.5 days on the OT and full days (rate) for weekend.

• 

  JimmyF on 12/03/2022 - 20:50

  +2

  Is this normal?

  Yes….. As per the contract, normally there is no penalty/overtime rates for IT contractors. It is the same hourly rate, regardless of when you work. So if your contact doesn't list penalties or overtime rates, then there are none.

  • 

    animasoIa on 12/03/2022 - 21:29

    Ok, thanks. Didn't neg you by the way, lol.

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  tonyjzx on 16/03/2022 - 12:51

  this seems to be have been a common thing for decades unfortunately in this sector

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  mini2 on 19/03/2022 - 07:32

  Should've just written an SOP/implementation plan or instructions then fob it off to the permies for them to do their OT/out of hours stuff unless it's absolute shit hits the fan stuff.

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  freefall101 on 20/03/2022 - 14:24

  Nope, there's no penalty rates under the basic award for Professional Employees. If there's any overtime paid, it only has to be paid at the base rate.

  Even if there was a penalty rate, there would only be a requirement to make sure it's paid to the rate specified in the award or EBA (unlikely to be under an EBA in IT though). If your friend is on good money, they're likely way over that anyway.

  It's the way most employers get away with not paying overtime at all. So long as the rate of pay for the employee overall is high enough to cover those OT hours then the employer is in the clear. FW gets involved if they're working so much their rate of pay is too low. All employers need to do is throw "And overtime as required" in the contract and they're fine.

  IMO, paid overtime sounds like a luxury to me, I'd be pretty happy with it.

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  Vote for Pedro on 18/04/2022 - 21:44

  What’s their contract/enterprise agreement/award say. All of that is usually covered in the letter of offer for employment.

  If you share that i can point you in the right direction