The Federal Court has provided guidance about when
recall to duty becomes 'overtime'. This is increasingly
becoming an issue for employers due to flexibility in working
arrangements and employees working outside of 'normal'
hours and workplaces.
In Polan v Goulburn Valley Health (No 2)  FCA 30,
the Federal Court was required to determine the quantum of an
employee's underpayment of wages claim. The claim was based on
the performance of on-call duties outside her ordinary hours of
work between 2006 and 2012.
During the course of her employment, the employee was required
to be on call to take telephone calls from doctors and attend to
changes in roster arrangements at all times of the day and night.
Between 30 July 2012 and 20 October 2014, the employer paid the
employee a 'recall to duty allowance' under the provisions
of the relevant enterprise agreement.
The employee claimed overtime for the telephone calls that she
was required to take outside of her ordinary hours of work prior to
receiving the on-call allowance. Due to the period of the claim
(2006 to 2012), the Court was required to consider the
Workplace Relations Act 1996 (Cth), the Fair Work Act
2009 (Cth) and two enterprise agreements.
Justice Mortimer held that the employee's on-call duties
amounted to overtime not 'recalls to duty' under the
relevant enterprise agreements . Justice Mortimer held that the
distinction between recall to duty and overtime lay in the word
'recall' 'which suggests a conscious decision by or
on behalf of an employer to require an employee to perform specific
duties of employment outside the employee's ordinary hours of
Justice Mortimer determined that there was no specific
instruction given by the employer requiring the employee to act on
each occasion she performed the on-call duties outside ordinary
In contrast, overtime was considered as not being confined to a
specific direction by the employer. Rather, Justice Mortimer held
that overtime under the relevant legislation and industrial
instruments is concerned with an employee working reasonable
additional hours as authorised by the employer, including by way of
an ongoing arrangement or understanding. On this basis, Justice
Mortimer determined that the employee responding to staffing issues
and then attending to making necessary roster arrangements while
on-call amounted to her performing overtime.
The employer sought leave to off-set the amount of $60,271.27 in
recall payments made to the employee from October 2012 onwards
(off-set claim) against the amount of the unpaid overtime work due
to a mistake of law as to its obligation to make the recall
payments. Justice Mortimer refused leave to pursue the off-set
claim as it had insufficient prospects of success, was not
supported by evidence and was only raised after the liability
Due to the absence of evidence, Justice Mortimer relied upon the
employee's work phone bills from the relevant period and
applied the applicable hourly rates, finding an entitlement owing
of $18,579.52. As the records did not contain calls received or
time spent performing other tasks, Justice Mortimer found that it
was appropriate to 'gross up' the figure by 50% to
Justice Mortimer noted that, while this was a somewhat broad
brush approach given the lack of evidence, it would be
inappropriate to conclude that the employee had not proved she
worked overtime during the period. Furthermore, it was fair to only
award interest from after the point when the recall to duty
payments ceased in 2014, at a rate to be determined by the
provides guidance to employers about correctly distinguishing
between entitlements to ensure employees receive the correct
payments for the duties performed;
underlines the importance of employers keeping proper time and
wage records; and
illustrates that, while determining back pay entitlements can
be difficult from an evidentiary point of view, courts are willing
to take a flexible approach where an employee successfully
establishes their right to an entitlement.
Cooper Grace Ward is a leading Australian law firm based in
This publication is for information only and is not legal
advice. You should obtain advice that is specific to your
circumstances and not rely on this publication as legal advice. If
there are any issues you would like us to advise you on arising
from this publication, please contact Cooper Grace Ward
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