Entitlement to pay when on standby duty?

[AJB76]

Hi All,

I've been approached by some of our staff who, as part of their role, are required to remain on standby duty o/night for 14 nights a month (24/7 duty for 14 days). Their question is this - What rate is the company obliged to pay them for such duty? The Award has no clause regarding standby/on-call for employees in their category, but there is a clause in the same Award for another category that states that the employee shall be paid their ordinary hourly rate for each hour they are required to be on standby.

So, the question is, would this apply to a category of employees that undertake similar duty due to the 'spirit' of the Award, or can the company effectively force these folks to do standby/on-call duty for no additional pay? I've researched FWA decisions and my interpretations suggest that no employer can require an employee to hold standby/on-call for less than their ordinary Award hourly rate, and a discussion with a FWA call centre operator was 'grey' at best, but clear on the fact that the employee must be payed for standby/on-call duty.

If I am correct, and the Award rate for these employee's applies to their hours on standby, they are being grossly underpaid to the tune of circa $40,000 per year due to their 24/7 coverage for 14 days per month. If their contracts must pass the BOOT, then they may well be entitled to be back-payed for this. The company has had external IR consultants investigate this and I believe (upper management has kept this 'quiet') that they arrived at the conclusion that these employee's must be paid at their ordinary rate for each hour on standby for their current contract (and an enterprise agreement currently being negotiated) to pass the BOOT

Anyone out there had any experience with such a problem? My gut feeling is that the company is trying to underpay these employee's to save money by being dishonest in their negotiations by not disclosing their advice, and I believe that, from an ethical perspective, this is wrong.

Thanks.

[Qld IR Consultant]

Firstly don't expect a concrete answer from the FWO

Secondly, I would agree with your external IR Consultants, minimum would be ordinary hours for each hour on standby outside the ordinary spread of hours for their role. I would think it would be double dipping to pay them to be on standby during ordinary hours of work. I would be interested to see the outcome of the agreement negotiations on this provision. Most of the ones I have had dealings with pay a flat rate per day for "standy allowance" and then pay overtime if the employee is called out.

Keep us posted...just out of curiosity of course

Good Luck!!

[Sea Eagle]

We have both Standby and On Call provisions within our agreement.

Stand By for us is paid at the hourly rate when we have contacted an employee and asked them to standby immediately for possible work - so get out of bed or whatever, get ready, and wait further notice. They may not even be required to actually attend, this is just our way of ensuring resources will be available should they be required in developing emergency/storm situations.

It sounds to me as if you guys need to negotiate On Call terms, seperate from Stand By, in your Agreement. This generally allows the person to be available with a reasonable response time to attend after hours work on a rostered basis. Which is what you seem to be describing. Our On Call staff are paid a weekly allowance and then minimum payment of OT for every call out.

[ausjus]

This sounds to me as on call, rather then on standby.

For on call, there is an on call allowance (8.8% min weekly std rate) and if there are using their own private vehicle, they are entitled to a vehicle allowance as well.

[IndustrialResources]

I would be interested in the industry or award as the classification level my prohibit that classification from being on call and in order for them to be on call, may automatically reclassify them at a higher rate to fit the the on-call request which may complicate the situation further and see even higher back payment payable!