The Fair Work Commission by Determinations of 27 November 2017 has varied the Award provisions in relation to Time-Off-In-Lieu (TOIL) of overtime under the Pastoral Award 2010 and the Horticulture Award 2010.
The new clause prescribes a number of conditions applying to a “time off instead of paying for overtime” arrangement including:-
An agreement must be in writing and state:-
- that the employer and employee agree that the employee may take time off instead of being paid for the overtime;
- that the agreement can be terminated at any time by notice in writing;
- that overtime worked after the agreement is terminated will be paid at the overtime rate applicable to the overtime when worked;
- that time off instead of overtime must be taken within 6 months of it being worked, at a time or times agreed by the employee and employer;
- that, if time off is not taken as mentioned in paragraph (iv), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.
Note: - A Draft Agreement has been inserted into both Awards which may be of assistance.
The period of time off that an employee is entitled to take is the same as the number of overtime hours worked, e.g. an employee who worked 2 overtime hours is entitled to take 2 hours paid time off.
Note paragraphs (iv) and (v) in particular. If there is currently no limitation of accrual of days off you should ensure that they be taken within 6 months of accrual or they will have to be paid out at the overtime rate.
A record must be kept showing the number of overtime hours worked by the employee, when those hours were worked and an updated record of the employee’s time off instead of payment for overtime balance.
On the termination of the employee’s employment, if time off for overtime worked by the employee to which clause 31.5 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.
Effect on Workplace Agreements and Individual Flexibility Agreements
To the best of our knowledge there have been no test cases to determine the effect of an Award variation of provisions that are contained in an Agreement and to that extent it is unclear at this stage whether current TOIL provisions in Was and IFAs will be affected by the FWC Determination.
If you have agreements in place with no limitation on accruals please contact us for further information.
Revised copies of the PA and HA incorporating this variation has published on the PEQ website under the various Industry Sections
The variation takes effect from the start of the first full pay period commencing on or after 27 November 2017.
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