In an industry reliant on overtime, Luke Thomas examines what implications Fair Work’s new legislative rulings on underpayments – due on 1 March – could potentially have on marketing and advertising businesses.

It is no secret the marketing industry, much like the legal and financial sector, is notorious for its reliance on overtime. 

The normalisation of long hours and glorification of an ‘always-on’ culture can make broaching the issue of pay and overtime a big taboo. Hence most marketers have built a career on resilience – avoiding these conversations entirely out of fear of being misinterpreted.  

But many marketers might be surprised to learn they are covered by an award. While employment terms like this might seem complex, an award is simply a document which sets out your minimum terms and conditions of employment. It includes things like pay, hours of work, rosters, breaks, allowances, penalty rates and overtime.

The key is identifying your underpinning applicable awards to better understand if and which of your employees are covered by the roles and responsibilities under one or more of the modern awards. As a starting point it is hard for any small to medium business (i.e., more than ten employees) not to be covered by the clerks award. 

Being covered by an award means many Australian marketers are about to either get a pay rise or their work-life balance reinstated, as new legislation on underpayments comes into effect on 1 March.  

However, many organisations are blissfully sleepwalking into non-compliance, which will have serious repercussions for the industry.

Mass underpayments

Unless you’ve been living under a rock, you would be aware of the onslaught of high-profile brands that have landed themselves in seriously hot water due to underpaying their staff in recent years. With the likes of QANTAS, ABC and Merivale being hit with mass ‘wage theft’ lawsuits, it’s clear that no brand is immune to falling into the same trap. 

The Fair Work Ombudsman’s recent report reveals a staggering $123.5 million was recovered for over 25,000 employees, which included $90 million in underpayments that were self-reported by employers over the past financial year. 

State and federal governments have rightly come down hard on the corporate sector, announcing new legislative rulings on underpayments which are due to take effect next Monday. 

Non-compliance will mean massive reputational issues, legal suits or even jail-time for top executives in some states.

A timely wake up call for marketers 

It will be news to many marketers and employers alike that these rulings apply to all full-time marketers in Australia who are currently covered under an award.  

The law stipulates that employers must identify their current award obligations, back pay staff where relevant and made good on agreements for all employees covered by the award. 

Usually this comes down to paying for any overtime hours over the agreed amount. This also means that all companies impacted must capture employee time and keep accurate attendance records to ensure they comply with the Fair Work Australia mandate. In other words, time sheets for everyone. 

While the buck stops with employers when it comes to ensuring compliance, this not the time for marketers to rest on their laurels. 

There are some non-negotiable steps all marketers should be taking now to not only get paid properly, but also to help keep their companies out of front-page news as Australia’s next corporate underpayment disaster.

What can I do? 

While the topic of overtime may be uncomfortable to raise, with the new legislation to annualised salaries only one week away, now is the time to bite the bullet. 

The first point of call should be a conversation with either your boss or the HR or payroll manager. If you are working at a reasonably small company, the business owner is likely to be the most appropriate person.

Like any important meeting, it is important to come prepared. As a starting point, we recommend you ask your HR Manager or employer the following questions:

1. Am I covered under an award? If so, which award?
2. What are my entitlements and obligations under that award?
3. Do you have up to date salary arrangements in place to meet your obligations outlined by this award?

If they cannot confidently answer any of these questions, consider this a red flag and encourage your company to get legal guidance.

While the thought of raising this with your employer might send a shiver down your spine, remember that you are doing them a favour to ensure they are following the law.

As we have seen countless times in the media recently, non-compliance can lead to the potential illegal underpayment of employees, and your boss facing major lawsuits, substantial fines or even jailtime.

Cross the T’s and dot the I’s

One of the major reasons so many companies have got it wrong when it comes to overtime payments is that Australia’s employment law framework is seriously complex.

As inexcusable as it is, underpayments are rarely the doings of employers scheming away against their staff, and even those with large payroll and HR teams are still getting it wrong. 

A chat between your employer and a lawyer ahead of the changes coming on 1 March can help make sense of obligations and entitlements which are often buried under a whole lot of legal jargon.

By crossing the T’s and dotting the I’s with a lawyer now, employers and employees can alleviate a lot of anguish that an underpayments scandal may one day rear its ugly head.

No more grey area when it comes to overtime

With only a week to go before the new underpayment legislation kicks in, we are officially about to pass the point of no return and cannot afford to be tippy toeing around the issue any longer. 

The good news? It’s reasonably straightforward to protect your organisation, company directors and employees from underpayments using the right technology built for the demanding and ever-changing Australian regulatory environment. Also, many of the new requirements can be automated to ensure full compliance with minimal admin.  

That said, the first step of addressing the taboo is far trickier. The conversation around overtime needs to be addressed now – before it becomes a legal matter. 

Luke Thomas is the product marketing manager at Sage Software Australia.

Photo by Luis Villasmil on Unsplash.