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LawAccess NSW > Representing Yourself - LawAssist

Overtime, penalty rates and allowances

What is overtime?

Under the National Employment Standards (NES), the maximum hours of work for a full time employee is 38 hours per week. Overtime is any work that you do outside of your normal working hours. Generally overtime is paid at a rate higher than your usual hourly rate. The hourly rate you are paid will depend on:

  • your award or enterprise agreement
  • the day that you do the work (generally overtime is paid on Saturdays and Sundays)
  • the time in excess of the normal hours you work.

 Your employer can ask you to work additional hours but the request must be reasonable. If your employer is forcing you to work unreasonable extra hours, you should get legal advice.

        

What are penalty rates?

If you work late nights, early mornings, weekends or on public holidays, you may be entitled to a higher rate of pay. These higher rates are called penalty rates, and they can be different depending on your job or industry you work in. How much you should be paid for working during these times will depend on your award, enterprise agreement or contract of employment.

 If you are only covered by the NES you are not entitled to penalty rates.

What is an allowance?

Some employees may be entitled to extra payments, for things like:

  • working in extreme temperatures
  • wearing a uniform
  • meals
  • wear and tear of their own tools
  • working in dirty or dangerous conditions.

These types of payments are called allowances. The allowances that you are entitled to should be set out in the award or enterprise agreement you are employed under, or your contract of employment.

When should I be paid?

If you are entitled to overtime or any allowances, these will usually be paid at the same time that you receive your wages. For example, weekly, fortnightly or monthly. Overtime and allowances are usually singled out on your payslip so you can easily check how much you were paid for these entitlements.

If you are dismissed (sacked) from your job, you should still be paid any allowances you are entitled to and any overtime that you worked until your last day of employment. You should receive these payments when you leave your job or on the next scheduled payday.

 If you haven't been paid or you haven't been paid the right amount, there are steps you can take to try and recover the money that you are entitled to. For more information, see What if my entitlements are not paid?

        
 
  If you are not sure if you are entitled to overtime, penalty rates or any allowances, you should get legal advice.
 

   Case study - Rishi

Rishi was employed as a full time cook at a fast food restaurant. He normally worked on weekdays but for the last two months he also worked on weekends. While Rishi was paid for working the extra days, his boss didn't pay him anything extra than his normal hourly rate.

 

Rishi checked his letter of employment but it didn't say anything about overtime. He then searched the Fair Work Ombudsman website and found out that he was covered by an Award. The Award said Rishi was entitled to a higher rate of pay for working weekends and that he was also entitled to an allowance for buying a uniform.

 

After writing a letter of demand to his boss, Rishi was paid the extra pay and the uniform allowance.
        
 
 
 
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