Your rights: Paying the price of after-hours working

Q. I work for the Department of Child Youth and Family Services as a social worker and my contract requires me to be available to work out of hours. My usual hours are 8am to 5pm Monday to Friday.

The department runs an after-hours service but, outside large cities, does not hire social workers to cover this. So we have to be on call after having worked all day.

When providing after-hours cover social workers receive approximately $1.35 an hour after tax - regardless of whether they are called out or not - and claim for time actually worked to take off later.

Can I ask to be removed from the after-hours roster, as I believe not getting a break from work puts me under undue stress.

Being on call means I have to take work home with me, and my whole family is exposed to this. I also have to make sure babysitters are available if I am called out.

How can it be legal for an employer to require staff to be available then pay only a fraction of the hourly rate and time off in lieu for work actually carried out? I understand that the PSA negotiated this and that most members accepted it. Can I tell my employer I do not accept it even if it is in the collective agreement?

A. Your letter does not say whether you are paid a salary, or are paid an hourly rate. A salary is full payment for the job regardless of the hours that have to be worked. Waged or hourly rate payment is payment by the hour. So it can be legal for an employer to require staff to be available and only pay a very modest extra payment, if staff are on salary.

Your employment agreement may specify that you will be on call if required and will be paid only the $1.35 per hour plus time off in lieu.

You need to check your employment agreement. It sounds like it is a collective employment agreement negotiated by the PSA. Check with the PSA if you are a member.

You won't be employed under the collective agreement if you are not a PSA member. But you may have agreed to be employed under an individual employment agreement with identical terms to the collective agreement. You need to check all this.

All is not lost. You seem to be suffering significant stress from the hours you are being asked to work, which may raise a health and safety issue. Even if you have agreed in your individual agreement to work call outs, you must not be worked so hard that your health or safety suffer. Consult the Department of Labour, or an employment lawyer. Alternatively, join the PSA. But if you are a PSA member you must accept what is in the collective agreement.

* John Hannan is a partner of Phillips Fox, specialising in employment law. Answers are of a general nature only and should not be substituted for specific legal advice.

Email your employment law questions in 200 words or less to Steve Hart with "Your rights" in the subject line. Questions are not normally acknowledged on receipt and will be answered only through this column.