Do Employees Have to be Paid for Being On-call?

by Zoe Spanos

July 21, 2022
Blog, Employment & HR

Not all jobs require the traditional 9 to 5 hours. Some jobs have irregular hours and require employees to be on call to keep things running. But, do employees need to be paid for being on-call? Even if they are not actually preforming their job duties?

This post will cover everything you need to know regarding on call entitlements in Australia and factors that affect whether you can get paid for being on-call.

Read along!

What is the definition of employees who are “paid for being on-call”?

Certain work sometimes requires employees or workers to be ready at times outside their usual shifts. These employees are on-call where unforeseen events may require them to work. This is also known as ‘standing’ or ‘standby’.

This is where employees are not at work, but employers will pay them nonetheless, for being ready to work. However, being on standby can differ to being on-call.

Example 1:

An employer may call an off duty employee to alert them of the fact that they may be required to work. Whereas, being on-call can mean the employee is ready to work in a set period of time despite later notice.

Example 2:

A surgeon may be required to be on-call over the weekend. Standby, however, is where a hospital might call a surgeon to alert them to the fact that they might be needed. Below are some important considerations to make for employers and employees alike.

The Actual Employment Agreement

Many of an employee’s entitlements to on-call pay will depend on the employment agreement. This is where the employer places and outlines the appropriate employment standards. The terms of the contract between employer and employee will outline all matters relating to pay.

The negotiation process will establish the agreement an employee will come to with their employer. If you are unsure of your rights throughout this process, or when drafting this agreement, it may be advisable that you consult a contract lawyer.

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Including the appropriate allowances required by law is very important. A factor which may determine some other aspects of your contract are the legal award requirements.

A recent Federal Court of Australia decision held that an employer owed workers time for standing by. Consequently, the actual arrangement between employer and employee is a significant factor when interpreting the employment relationship and conditions.

Type of Award

Awards (modern awards) are legal documents that outline the minimum pay rates and conditions of employment. Accordingly, the type of award will influence the agreement you form with your employer.

If you would like to find out more about your award, you can seek further information through the Australian Government Fair Work Ombudsman.

Type of Industry

Some industries come to expect more from workers. The nature of the work can make all the difference.

If the type of work places great strain on workers, it may be more likely that general practice of on-call allowances will apply.

However, if the work is unlikely to create problems for workers in putting aside time to make themselves available, then on-call allowances may be less likely to form.

Workplace Health and Safety Requirements

Furthermore, health and safety requirements in some professions place restraints on how many hours employees can work. Limits on the number of hours employees can work mean it may be less likely you would be paid for being on-call.

There is more information on working hours on the Safe Work Australia website.

Tax and Superannuation Requirements

Lastly, your on-call pay will affect your superannuation. Superannuation on allowances is a legal requirement for employers. The Australian Taxation Office website provides an outline regarding this.

Overall, case by case factors will mostly determine on-call allowances. The specific employment agreement, work contract, type of industry, and award level are all factors to consider when determining whether an employee ought to be paid for being on-call.

It is always a good idea to consult an employment lawyer if you are unsure of your rights.

How much do employees have to be paid for being on call?

Even if an employee is on call, payment is determined by the factors discussed above.

If an employee needs to stay on a worksite and wait until something comes up they are entitled to payment. The line gets a little bit blurry when an employee is on-call but not at work. But, generally speaking the less freedom an employee has the stronger the case for them being on-call. Similarly, being on-call during annual leave, sick leave or personal leave is usually negotiated within the employment contract.

So, with that being said, payment for being on call really depends on what is outlined and negotiated in the employment contract.

However, it is important to note that as per the NSW state law employees required to be on-call for any period outside their ordinary hours are eligible for an on-call allowance.

Moreover, an employee required to work outside their ordinary hours, qualifies for the appropriate overtime rates even on public holidays.

Frequently asked questions (Q&As)

What if an employee is on call for 8 hours, but only works for 2?

On call employees are employees that are required to be available for any period outside their ordinary hours of work. On call employees shall be paid an on-call allowance of $56.30 per week whilst being on call for their waiting time or on call time.

If the employee is required for 2 hours of work then they are entitled to overtime rates for their actual work time. The rate of pay is determined by the appropriate state and federal laws that are applicable in their unique situation.

Key Takeaways

Even if an employee is on call, they aren’t necessarily entitled to be paid for their time especially if they are not undertaking tasks within their job description.

An employee’s right to remuneration really depends on where they have to be, including being on or off an employer‘s premises and the restrictions placed on them, among other things.

Both the employers and employees time is valuable within both big and small businesses, so it is important to make the appropriate on-call assessments to make sure no one is waisting time.

If you are struggling to determine if an employee is on call or not, it is best to consult an employment lawyer with a good understanding of employment laws.