Madeleine Harradence, Assistant Secretary of ANMF (Vic Branch)
Overtime, like many entitlements, varies depending on which enterprise bargaining agreement (EBA) covers your workplace. This article is based on the provisions contained in the Nurses and Midwives (Victorian Public Sector) (Single Interest Employers) Enterprise Agreement 2020-2024.
If you are not covered the public sector agreement, check your agreement via the Member Portal.
What is overtime?
Overtime is described in many ways but is generally work occuring outside your rostered hours of work, or in addition to your rostered hours of work, such as being required to stay back after your shift ends.
Overtime attracts a higher hourly rate than your normal rostered hours. For the first two hours of overtime, you receive one and a half times your normal hourly rate, and if that overtime continues beyond two hours (and for all overtime on a weekend), you receive double your normal hourly rate.
Can I be required to work overtime?
Broadly, yes, if it is ‘reasonable overtime’ having regard to the following:
- any risk to your health and safety from working the additional hours
- your personal circumstances, including family responsibilities
- the needs of your workplace
- any notice given by your employer of any request or requirement to work the additional hours
- any notice given by you of your intention to refuse to work the additional hours
- the usual patterns of work in the industry, or the part of an industry, in which you work
- the nature of your role, and your level of responsibility
- any other relevant matter.
You may refuse to work overtime, if the request is unreasonable. However, the less notice you give, the less reasonable that refusal will be, and in some work areas, like operating theatres, it is considered ‘part of the pattern of work’.
Can I claim child care expenses if I am required to work overtime?
Where you are required to work overtime with less than 24 hours’ notice (other than recall when on call) you can be reimbursed for reasonable childcare expenses incurred. You must provide evidence of the money spent on childcare (not necessarily a formal childcare service) to your employer as soon as practicable after the overtime worked.
Can I be required to take time off instead of payment for overtime?
No. The default position is you must be paid, but you can agree to take time off ‘in lieu’ of overtime worked. It must be at the overtime multiplier, you work an hour overtime you get an hour and half off in lieu.
Must overtime be ‘approved’?
Generally, yes – overtime is subject to approval before or sometimes after the overtime was worked.
If you are required by your employer to be there, then that is approved.
The EBA recognises that not all overtime can be planned and simply cannot be approved in advance, but you are still entitled to overtime, the test is that it was ‘required’ by your employer.
The 2020-2024 EBA clarifies that a requirement by the nurse or midwife in charge of the ward to stay back, is deemed a requirement of the employer. ANMF can assist with resolving any dispute about overtime, including referring to the Fair Work Commission if unresolved locally.
What if I have a rostered shift shortly after finishing overtime?
When overtime is worked (other than from home) you should have at least 10 consecutive hours off duty between finishing the overtime and your next successive shift.
Your employer should allow you to be absent from the rostered shift (without off of pay) until you have had 10 consecutive hours off duty.
If your employer requires you to resume (or continue) work without having 10 consecutive hours off, you are entitled to be paid double time until released from duty for 10 consecutive hours.
What happens if the overtime eats into my days off?
As in the previous EBA, an employee who works four or more shifts a week, and who works ‘excessive hours’ that include part of your rostered day off, you are entitled to a substitute paid day off.
The logic of the employee having to normally work four or more shifts a week is because that cohort of members only get two or three days off a week and spending your first day off recovering from work is not having a proper day off.
‘Excessive hours’ means working 14 or more continuous hours (not counting unpaid rest/meal breaks), and that work includes night-time hours. Typically, this would include a ‘double shift’ or areas with high levels of overtime such as theatres and cath labs.
The substitute rostered day off must be on a working day (without loss of pay) as soon as practicable, but not later than 14 days from the ‘excessive hours’ worked.
Night-time hours are the hours that would attract the night-shift penalty if rostered to work, for example, hours worked that finish on the day after commencing duty; or commence after midnight and before 5am.
What about double shifts?
A ‘double shift’ is when you complete a normal rostered shift and stay back to fill a vacant shift. Ideally these would not occur given the significant fatigue impact.
Where overtime is a result of a double shift, the standard overtime provisions apply from the conclusion of the rostered shift, and your employer must provide for a 10-minute paid break in each two hours worked. Your employer must also provide adequate transport free of cost, including the return journey where your vehicle remains at the workplace.
