9-to-5 is no longer the norm

Employees in professional roles can reasonably be expected to work additional hours outside their normal workday.

Accounting professionals have to accept the “rough with the smooth” when it comes to working extra hours.

By Jonathan Mamaril

With the demands of modern business, employees increasingly work beyond traditional 9am to 5pm business hours. It is a trend that has generated considerable discussion around whether those extra hours should be paid as either overtime or time off in lieu (TOIL).

However, a decision by Commissioner DJ Mathews in the Western Australian Industrial Relations Commission (WAIRC) leaves no doubt employees in “professional” roles – such as CPAs – have to accept the “rough and smooth” that applies in today’s workplaces, and therefore have no claim to additional recompense.

In the case of Albert Scholten v MVP Accountants & Advisors Pty Ltd [2007] WAIRC 00324 (13 June 2017) (MVP case), the applicant at the time of his resignation was an accountant earning $115,000 per annum. Like many practising accountants, he worked outside standard business hours in order to meet billable hour requirements. There was no set expectation to work a certain amount of hours, just that he achieve his billable target.

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The applicant claimed TOIL for the hours he worked outside 9-to-5, or span of office hours – something Commissioner Mathews determined was a “try on”.

The Commissioner found that aside from the applicant being an accounting professional who could reasonably be expected to work additional hours, there was also a (not uncommon) reference to it in his employment contract. This, the Commissioner maintained, clearly indicated that because of the professional nature of his position, services would have to be provided outside a “normal” workday timeframe.

Accordingly, the claim for TOIL was flatly rejected.

The MVP case decision supports the long-standing view that in many positions – especially at a professional level where practitioners are paid well above minimum award rates or hold senior or management roles – there will be an expectation to commit to working potentially extended hours.

Precautionary measures for advisors

For practitioners advising clients on staff employment issues – especially those that apply to senior positions – in order to circumvent matters similar to those raised in the MVP case, it is crucial to ensure implementation of the following:

  1. A written employment contract with clauses covering the requirement that an employee may need to make themselves available for work outside standard working hours.
  2. Zero ambiguity in contractual and policy documentation regarding hours of work, especially in organisations that set billable targets.
  3. In instances where a separate arrangement for an employee to be paid overtime or allowed time off in lieu for working outside normal hours is required, it is reflected in either the employment contract or in separate documentation.
  4. If an employee has an enquiry or complaint regarding TOIL or unpaid overtime, there is an appropriate process in place to immediately deal with it. Such issues cannot be allowed to fester as they may lead to a dispute or in more serious circumstances, a general protections claim.
Jonathan Mamaril is principal and director of Brisbane-based NB Lawyers.

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