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6 December 2017 Quirks in modern awards #4: No overtime rates for casuals in the Horticulture Award 2010

By Simon Obee, Associate

The majority of employees in Australia are covered by an industry / occupation specific modern award. Whilst many of the awards contain similar provisions, in this series of occasional articles we examine unusual award clauses which are sometimes missed by employers.

Most modern awards provide that all employees – full-time, part-time and casual – are paid overtime rates when they work over a certain number of "ordinary hours" per day or week, or when they perform work outside a certain "span" of hours.

Typically the first two or three hours of overtime are paid at time-and-a-half and thereafter at double-time.

However, as clause 22 of the Horticulture Award 2010 only defines what "ordinary hours" are for full-time and part-time employees, the implication is that there is no limit to the ordinary hours a casual employee can work and no overtime is payable.

That casuals are not entitled to overtime rates under the Award is a view supported by the Fair Work Ombudsman – see: https://www.fairwork.gov.au/employee-entitlements/hours-of-work-breaks-and-rosters/hours-of-work/when-overtime-applies-industry-specific/horticulture-award

Casuals do appear to be entitled to a higher rate for working on public holidays: https://www.fairwork.gov.au/library/k600141_overtime-penalty-rates-for-casuals-in-the-horticulture-award

Simon Obee, Associate  |  Phone: +61 2 9233 5544  |  Email: sro@swaab.com.au

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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