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30 March 2010

Unions will appeal against a decision by Fair Work Australia that forfeits overtime penalty rates for people working more than 38 hours a week.

Australian Workers' Union national secretary Paul Howes said the decision by Senior Deputy President Richards was disappointing and threatened to undermine a basic employee entitlement.

ACTU backs AWU appeal

The decision by SDP Richards applies to fruit and vegetable pickers in Queensland, but could have wider ramifications for other workplace agreements and the ACTU would intervene in support of the AWU appeal, said ACTU Secretary Jeff Lawrence.

The decision means that workers who volunteered to work more than 38 hours a week would not be entitled to any overtime penalty rates.

Fails the BOOT test

Mr Howes said the AWU believed the decision failed the Better-Off-Overall Test (BOOT) and would appeal.

"Workers spent many years campaigning for the 38 hour week, which is now entrenched as a core safety net standard," he said.

Compensate for work over 38 hours

"Any moves to have employees work more than 38 hours immediately puts a worker at a disadvantage, and they should be adequately compensated through overtime penalty rates.

"This decision contradicts the legislation and clearly disadvantages the workers when compared to the award for their industry."

Unions awaiting Full Bench appeal on penalty rates

Mr Lawrence said unions were awaiting the result of a Full Bench appeal over the validity of clauses that removed penalty rates for overtime.

He said the Full Bench decision would clarify matters for employees and employers.

"The Full Bench appeal will determine the proper approach to be taken to arrangements that deprive employees of overtime pay," Mr Lawrence said.

"Where an Award provides overtime for working more than 38 hours and an agreement doesn't, that is a disadvantage for the employees and shouldn't be included in agreements."

Read media reports

• AWU fights volunteer-overtime ruling (ABC)

• AWU takes on workplace umpire to contest 38 hour week ruling (ABC World Today)

• Unions to appeal 38-hour ruling ( The Australian)

• Union appeal on overtime ( Melbourne Age)

• Extra hours ruling pleases employers ( Melbourne Age)