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Information technology has opened enormous opportunities for both employers and employees to gain productivity increases and access to a greater work / life balance, but this access can raise some problematic questions surrounding employee’s entitlement to compensation for ‘electronic overtime’.

Brazil has recently taken the bold step of introducing legislation that brings tasks like as answering work related e-mails after the end of a shift into the realm of overtime. The legislation equates the e-mails to orders given directly to the employee and will enable the employee to request remuneration for the work done in reading and responding to them.

In Australia, overtime is often defined in reference to the hours worked rather than what it entails. An award or agreement may define overtime as time worked in excess of 38 hours or outside of ordinary hours. It can be defined differently in certain awards or agreements so you should always consult Fair Work Australia or a legal practitioner for clarification on your individual circumstance.

Generally speaking, overtime includes all time worked by day workers:

  • In excess of the maximum number of hours fixed for each day
  • In excess of the maximum hours fixed for each week
  • Before the usual starting time or after the usual finishing time each day
  • Outside the times during which the instrument requires the ordinary hours to be worked each day.

Developed economies like Australia have to date had little to say on the specific issue of ‘electronic overtime’, though there is movement in the United States on this front, in Chicago for instance, a policeman named Jeffrey Allen has filed a class action law suit against the city for unpaid overtime of this nature. There is also the highly publicised decision by European car manufacturer Volkswagen to suspend e-mail communication to employees with e-mail capable devices 30 minutes after their shift ends. This decision does not disable the phone and it is completely capable of completing all the ordinary functions of a phone, however the company e-mail will only reengage 30 minutes prior to the beginning of the employee’s next shift.

Although the Brazilian position may sound appealing, employees should be mindful of leniency employers may show towards use of company hours for personal tasks. It would be virtually impossible for both employees and businesses to operate in environments of strict oversight and stringent adherence to a confinement of work and personal tasks to their respective allotted time. Both employment and domestic responsibilities sometimes carry into other areas of our lives and can temporarily take top priority, employers and employees should work together to accommodate on these occasions.

‘Electronic overtime’ is an issue that will be increasingly relevant to our lives as technology continues to be incorporated into our workplaces, and new employment rules may be needed in order to deal with the intimate access that technology has to many of us in our personal lives.

Please contact Edmund Saw on 03 9870 9870 if you would like to discuss this, or any other HR/employment related issue, further.

For further information on the topic see: Joe Leahy, Brazil’s overtime pay law risks higher labour costs, (January 20, 2012), Financial Times  <http://www.ft.com/cms/s/0/7c5b23d8-4392-11e1-adda-00144feab49a.html#axzz21OeEQQGH>

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