Changes to time off instead of overtime

Recently, the Fair Work Commission made a ruling that could impact your overtime and time off in lieu (TOIL) conditions. 

This information only applies to people who work under the following Awards and do not have a collective agreement with provisions about overtime and time off in lieu (TOIL): 

-       Airline Operations (Ground Staff) Award 2010

-       Food, Beverage and Tobacco Manufacturing Award 2010

-       Graphic Arts, Printing and Publishing Award 2010

-       Manufacturing and Associated Industries and Occupations Award 2010

-       Sugar Industry Award 2010

Under the new provisions passed by the Fair Work Commission, employers and employees can agree to take time off in lieu (TOIL) for overtime. This means that where an employee works overtime, they can request to have their overtime hours given to them as time off, rather than having it paid as overtime.

The important change is that the Fair Work Commission has ruled an employee now has a clear right to elect for payment at any time and the agreement must be in writing between employee and employer, which was not clear before.

In addition, time off in lieu is to be taken at a single time. If you decide to take time off in lieu, you do forgo the right be paid the penalty rates had you opted to be paid your overtime.

There are strict conditions around agreements to take time off in lieu of payment for overtime. These include the following:

a)    Any agreement for TOIL must be in writing (this can include an email).

b)   Each pay period must have its own agreement regarding overtime to be taken at TOIL for that period.

c)    The Agreement must contain the following content:

1.               i.         The number of overtime hours to which it applies and when those hours were worked;
2.              ii.         That the employer and employee agree that the employee may take time off instead of being paid for the overtime;
3.            iii.         That, if the employee requests at any time, the employer must pay the employee, for the overtime worked at the overtime rate;
4.            iv.         The payment if requested, must be made in the next pay period following the request.

d)   A template agreement is now included in all awards where TOIL is available.  However, it can be in the form of an exchange of emails and not necessarily a signed hard copy.

e)    Time off must be taken:

1.               i.         Within the period of 6 months after the overtime is worked; and
2.              ii.         At a time that is agreed between the employer and the employee.

f)     If the time off is not taken within 6 months, then it must be paid to the employee at overtime rates in the next pay period after 6 months has elapsed.

g)    The Agreement must be kept as an employee record.

h)   The employer must not exert undue influence or undue pressure on an employee to make or not make the TOIL agreement.

i)     On termination, any time off not taken must be paid at the overtime rates to the employee.

j)     There is now also a note in the Award reminding people that they must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person to agree or not to agree to take TOIL.

If you have any further questions about this or any other of your workplace rights, please contact the AMWU HelpDesk on 1300732698.