1
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards—Award flexibility
(AM2014/300)
JUSTICE ROSS, PRESIDENT
DEPUTY PRESIDENT KOVACIC
COMMISSIONER LEE
MELBOURNE, 8 JULY 2016
4 yearly review of modern awards - common issue - award flexibility - time off instead of
payment for overtime – finalisation of plain language model term.
1. Introduction
[1] On 24 April 2016 we issued a decision1 (the April 2016 decision) which proposed the
variation of 26 modern awards (set out at Attachment D to the April 2016 decision)2 to insert
a plain language model term (the April 2016 model term) and the associated Schedule
containing a template agreement. The April 2016 model term was a plain language redraft of
the October 2015 model term.
[2] The draft variation determinations were published on 9 May 2016 and interested
parties were given a period of 14 days in which to comment. The publication of the draft
variation determinations also provided any interested party with an opportunity to comment
on the April 2016 model term. This decision deals with the submissions received in relation to
these issues and finalises the model term.
2. The Submissions
[3] Submissions in relation to the April 2016 model term were received from:
Australian Industry Group (Ai Group);
Australian Manufacturing Workers’ Union (AMWU);
Master Electricians Australia (MEA); and
National Farmers’ Federation (NFF).
[4] It is convenient to deal first with the submission advanced by MEA as it raises a
discrete issue.
[2016] FWCFB 4258
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am2014300-sub-nff-230516.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/submissions/am2014300-sub-mae-230516.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am2014300-sub-amwu-230516.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/am2014300-sub-aig-240516.pdf
[2016] FWCFB 4258
2
[5] MEA submits that the model term should be amended to make clear that accrued time
off may be utilised during a period of stand down under s.524 of the Fair Work Act 2009
(Cth) (the Act). In particular, MEA proposes that a new subclause A.1(1) be inserted into the
model term, as follows:
“An employee may, during a period of employer initiated stand down in accordance with
section 524 of the Act, request to utilise any or all outstanding accrued TOIL at a time for time
basis.”
[6] In the alternative, MEA submits that the Fair Work Commission (the Commission)
should clarify that accrued time off may be utilised by an employee during a period of stand
down.
[7] Section 524 of the Act provides that in certain circumstances an employer may stand
down an employee during a period in which the employee cannot be fully employed. If an
employer stands down an employee pursuant to s.524(1) then the employer is not required to
make payments to the employee for that period (s.524(3)).
[8] It is unclear how the MEA’s proposal is intended to operate. If the intention is that the
employee would not be paid for that time off (relying on s.524(3)), then such a proposal is
inimical to the nature and purpose of the model term. If the employee would be paid while
taking time off instead of payment for overtime rather than being stood down, then that can be
done under the model term as it currently stands. The model term makes it clear that time off
instead of payment for overtime can be taken at a time or times agreed by the employee and
employer. Accordingly the variation sought is unnecessary.
[9] The submissions advanced by Ai Group, the AMWU and the NFF suggest particular
changes to the April 2016 model term. The various submissions are summarised in
Attachment A of this decision. It is convenient to deal with these submissions on a paragraph
by paragraph basis.
A.1 Time off instead of payment for overtime
(a) An employee and employer may agree in writing to the employee taking time off instead
of being paid for a particular amount of overtime that has been worked by the employee.
[10] Ai Group and the NFF submit that the expression ‘time off in lieu of overtime’
(abbreviated as ‘TOIL’) should be retained, rather than the expression ‘time off instead of
overtime’, which appears in the April 2016 model term. Ai Group3 contends that:
‘The very widely used and understood abbreviation TOIL relates to the phrase “Time Off in
Lieu”.
The notion of changing the wording of the phrase, but continuing to use the abbreviation
“TOIL” is bound to confuse readers of awards.
The phrase “Time Off in Lieu” should be retained.’
[11] The NFF advances a similar point, submitting that: ‘the change may cause confusion
among stakeholders familiar with the term TOIL, which is a generally well understood
concept’.4 The NFF also submits that:
[2016] FWCFB 4258
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‘Payroll systems which currently use the expression TOIL on payslips will require adjustment
and this will create an administrative burden on business.’5
[12] We agree with the proposition that using the expression ‘time off instead of overtime’
while retaining the acronym ‘TOIL’ is likely to cause confusion. We also accept that some
award users – particularly unions and employer organisations – are familiar with the acronym
‘TOIL’. But many employees and employers covered by modern awards are not members of
unions or employer organisations. Modern awards need to be easily understood by those who
are covered by them. As the Full Bench observed in the 13 July 2015 Award Review
decision:6
‘An award should be able to be read by an employer or employee without needing a history
lesson or paid advocate to interpret how it is to apply in the workplace.’
[13] It is also relevant to note that 30 of the 115 modern awards which contain overtime
provisions do not presently contain a ‘TOIL’ provision. The April 2016 decision determined
that 26 of these 30 modern awards would be varied to insert the model term. It is likely that
many of the employees and employers covered by these 26 modern awards have no
familiarity with the acronym ‘TOIL’.
[14] Further, contrary to the NFF’s submission, we do not think that the change in
terminology will ‘create an administrative burden on business’. The suggestion by the NFF
that ‘payroll systems which currently use the expression TOIL on payslips will require
adjustment’, is simply an assertion and lacks substance. Regulation 3.46 of the Fair Work
Regulations 2009 sets out the information required to be included on payslips. There is no
regulatory requirement to specify ‘TOIL’ on an employee’s payslip. Nothing in the model
term requires any change to current payslip arrangements. It follows that if some employers
choose to include this additional information on employees’ payslips then they may continue
to use the acronym ‘TOIL’ if they wish.
[15] In our view ‘time off instead of payment for overtime’ more clearly conveys the
concept dealt with in the model term. The expression ‘instead of’ is simpler and easier to
understand than the expression ‘in lieu of’. We do not propose to revert to the latter
expression. As the retention of the acronym ‘TOIL’ is likely to cause confusion, it will be
deleted from the model term and the template agreement.
[16] We now turn to paragraph A.1(b):
(b) Any amount of overtime that has been worked by an employee in a particular
pay period and that is to be taken as time off instead of the employee being paid for it
must be the subject of a separate agreement under clause A.1.
[17] The NFF submits that this paragraph of the plain language redraft is more complex
than the October 2015 model term. The comparable provision in the October 2015 model term
said:
‘1.2 The following requirements apply to an agreement to take time off in lieu of payment for
overtime:
[2016] FWCFB 4258
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(a) A separate written agreement must be made by the employee and employer for
each occasion on which overtime that has been worked is to be taken as time off
in lieu …’
[18] The NFF proposes replacing paragraph A.1(b) of the April 2016 model term with the
following:
‘A separate written agreement must be made by the employee and employer for each pay period
during which time off is taken instead of payment for overtime.”
[19] We do not propose to make the change sought. If read literally, the NFF proposal
would require a separate written agreement to be made for each pay period in which the time
off instead of payment is actually taken. This does not capture our intended meaning, that is, a
separate agreement must be made for any overtime worked in a particular pay period in which
it is agreed that time off instead of payment will, at some time in the future, be taken.
[20] We now turn to paragraph A.1(c):
(c) An agreement must state each of the following:
…
(iii) that, if the employee requests at any time, the employer must pay the employee, for
overtime covered by the agreement but not taken as time off, at the overtime rate
applicable to the overtime when worked;
(iv) that any payment mentioned in subparagraph (iii) must be made in the pay period
immediately following the request.
Note: An example of the type of TOIL agreement required by this clause is set out at
Schedule [x]. There is no requirement to use the form of TOIL agreement set out at
Schedule [x]. A TOIL agreement can also be made by an exchange of emails between the
employee and employer, or by other electronic means.
[21] Two changes are proposed in respect of subparagraph A.1(c)(iv). First, the NFF
submits that the reference to ‘the request’ should specify that it is the employee’s request.
[22] The change proposed is unnecessary. There is only one request mentioned in the
paragraph, namely the employee’s. It is clear from the context that the request referred to in
subparagraph A.1(c)(iv) is the employee’s request.
[23] Second, Ai Group proposes that ‘next’ be inserted before ‘pay period’ because the
current draft could be interpreted as requiring payment to be made in the same pay period as
the employee’s request.
[24] The intention of subparagraph A.1(c)(iv) is to require payment in the first pay period
commencing after the employee’s request. To address the issue raised by Ai Group we will
insert the word ‘next’ and remove the word ‘immediately’, so that the phrase becomes: ‘in the
next pay period following the request’. Similar changes will be made to paragraphs A.1(f) and
A.1(g) and to the template agreement.
[25] In relation to the note under subparagraph A.1(c)(iv), the AMWU submits that it
should be clarified such that if an ‘exchange of emails’ is used to give effect to an agreement
(rather than the template agreement), then the requirements of paragraph A.1(c) must still be
met. The AMWU proposes that the following be inserted at the end of the last sentence:
[2016] FWCFB 4258
5
‘provided the exchange of emails or other electronic means sets out the required matters
in subparagraphs (c)(i)-(iv)’.
[26] We do not consider that a change to the extent proposed is necessary to provide the
clarification sought. The position will be clarified by simply referring to an agreement ‘under
clause A.1’, thus importing all of the requirements of such an agreement. Further, as
proposed by the NFF, references to ‘TOIL’ will be removed from the note, as the acronym no
longer reflects the wording of the clause. Addressing both of these issues, the note will be
reworded as follows:
‘NOTE: An example of the type of agreement required by clause A.1 is set out at
Schedule [x]. There is no requirement to use the form of agreement set out at Schedule
[x]. An agreement under clause A.1 can also be made by an exchange of emails
between the employee and employer, or by other electronic means.’
[27] We now turn to paragraph A.1(d):
(d) The period of time off that an employee is entitled to take is the same as the
number of overtime hours worked.
EXAMPLE: An employee who worked 2 overtime hours is entitled to time off of 2
hours.
[28] The NFF submits that this paragraph of the plain language redraft is more complex
than the original term and that the change could result in a change of meaning. The NFF
proposes that paragraph A.1(d) be replaced with the comparable provision in the October
2015 model term or that ‘ordinary time rate’ be replaced with ‘ordinary hourly rate’ or an
equivalent term used in the relevant modern award.
[29] The comparable provision in the October 2015 model term said:
‘(b) Overtime taken as time off during ordinary hours shall be taken at the ordinary time rate;
that is, an hour taken for each overtime hour worked’
[30] We do not propose to revert to the previous provision. The plain language provision
makes it clear that the amount of time off is the amount of overtime worked, regardless of
when the overtime is worked or the time off is taken. The suggested inclusion of a reference
to ‘rates’ – whether the ‘ordinary time rate’ or ‘ordinary hourly rate’ – suggests payment
rather than time off instead of payment and obscures the meaning of the provision.
[31] The NFF also submits that because the entitlement to time off instead of overtime only
operates where there is agreement, this should be reflected in the example, if the example is
retained, as follows:
‘EXAMPLE: An employee who worked 2 overtime hours can agree to take 2 hours’
time off.’
[32] We agree with the proposition that the entitlement to time off instead of payment only
arises where there is an agreement to that effect. But the agreement must be an agreement
under the model term. We will amend the example as follows:
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‘EXAMPLE: By making an agreement under clause A.1 Aan employee who worked 2
overtime hours is entitled to 2 hours’ time off.’
[33] We now turn to paragraph A.1(e):
(e) Time off must be taken:
(i) within the period of 6 months after the overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the employee and
employer.
[34] The NFF submits that the ‘plain language version of this clause does not deal with the
amount of time to be taken, and that it is not necessary to always refer to “the/that period of 6
months”.’ The NFF proposes that paragraph A.1(e) be reworded as follows:
‘(e) The agreed amount of time off must be taken:
(i) at a time or times agreed between the employee and employer; and
(ii) within 6 months of the overtime being worked.’
[35] We do not consider the NFF’s proposed rewording to be clearer than the plain
language version. Accordingly, no change will be made to paragraph A.1(e).
[36] We now turn to paragraph A.1(f) (with the change already noted at paragraph [24]
above):
(f) If the employee requests at any time to be paid for overtime covered by an
agreement under clause A.1 but not taken as time off, the employer must pay the
employee for the overtime, in the next pay period immediately following the
request, at the overtime rate applicable to the overtime when worked.
[37] The comparable provision in the October 2015 model term contained the prefatory
words ‘Notwithstanding any other provision of clause 1.2’. The NFF seeks to retain these
words, but replacing ‘notwithstanding’ with ‘despite’. In support of its proposal, the NFF
submits:
‘While the word ‘notwithstanding may be considered archaic, it does have legal meaning. To
avoid potentially inadvertent consequences from its omission, consideration could be given to
replacing the term with the term ‘despite’.’
[38] The expression ‘Notwithstanding (or despite) any other provision of clause A.1’ is not
required in the plain language version as paragraph A.1(f) expressly provides for the effect of
a payment request. The expression was deleted because it is unnecessary; no other
consequences are intended.
[39] We now turn to paragraph A.1(i):
(i) An employer must not exert undue influence or undue pressure on an employee to make,
or not make, an agreement under clause A.1.
[40] The NFF submits that the plain language version of this paragraph is narrower in
scope than the comparable provision in the October 2015 model term, which said:
[2016] FWCFB 4258
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‘1.4 An employer must not exert undue influence or undue pressure on an employee in
relation to a decision by the employee to make, or not make, an agreement to take time
off in lieu of payment for overtime.’
[41] We agree with the NFF. The wording in the October 2015 model term more closely
matched the wording of s.344 of the Act. In order to maintain the same scope of protection,
we will amend paragraph A.1(i), as shown:
‘(i) An employer must not exert undue influence or undue pressure on an employee in
relation to a decision by the employee to make, or not make, an agreement to take time
off instead of payment for overtime under clause A.1.’
[42] We now turn to paragraph A.1(j):
(j) An employee may, under section 65 of the Fair Work Act, request to take time off,
at a time or times specified in the request or to be subsequently agreed by the
employer and the employee, instead of being paid for overtime worked by the
employee. Clause A.1 applies to any such time off granted by the employer as if it
were time off covered by an agreement under clause A.1.
Note: If an employee makes a request under section 65 of the Fair Work Act
for a change in working arrangements, the employer may only refuse that
request on reasonable business grounds (see section 65(5) of the Fair Work
Act).
[43] The NFF advances two points in relation to paragraph A.1(j). First, it submits that as
‘the Act’ is defined term in all modern awards it does not need to be referenced in full in the
model term. Second, the NFF submits:
‘The words “as if it were time off covered by an agreement under…” could be
removed, given that despite the request being made under section 65, it will also be
covered by a written agreement under [the] proposed clause.’
[44] The AMWU submits that paragraph A.1(j) should make a more direct reference to the
request for flexible working arrangements, as opposed to simply referring to s.65 of the Act.
To that end, the AMWU suggested paragraph A.1(j) be amended to read as follows:
‘If an employee makes a request for flexible working arrangements under s. 65 of the Fair Work
Act, and the request is to take time off instead of being paid overtime, clause A.1 applies to any
such time off granted by the employer as if it were time off covered by an agreement under
clause A.1.’
[45] The AMWU also submits that the note immediately following paragraph A.1(j)
should, in addition to mentioning that an employer may only refuse a request for flexible
working arrangements on reasonable business grounds, refer to the obligation for an employer
to accept or refuse a request for flexible working arrangements within 21 days of receiving the
request. The amended note would read as follows (emphasis added):
Note: If an employee makes a request under section 65 of the Fair Work Act for a
change in working arrangements, the employer may only refuse that request on
[2016] FWCFB 4258
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reasonable business grounds (see section 65(5) of the Fair Work Act) and must
provide a written response to the request within 21 days.
[46] Under ss.65(1) and 65(1A) of the Act, an employee may request a change in his or her
working arrangements in a range of circumstances, namely, because the employee:
is the parent, or has responsibility for the care, of a child who is of school age or
younger;
is a carer (within the meaning of the Carer Recognition Act 2010);
has a disability;
is 55 or older;
is experiencing violence from a member of the employee’s family; or
provides care or support to a member of his or her immediate family or a member of
his or her household who requires care or support because the member is
experiencing violence from the member’s family.
[47] Subsection 65(2) limits the class of employees entitled to request a change in their
working arrangements.
[48] Requests for a change in working arrangements must be in writing and set out the
details of the change sought and the reasons for the change (s.65(3)). The employer must
provide a written response within 21 days stating whether the employer grants or refuses the
request (s.65(4)). If the request is refused, the written response must include details of the
reasons for the refusal (s.65(6)). Subsection 65(5) provides that the employer may only refuse
a request ‘on reasonable business grounds’. A non-exhaustive list of ‘reasonable business
grounds’ is set out in s.65(5A).
[49] As noted above, the NFF submits that the ‘words “as if it were time off covered by an
agreement under…” could be removed, given that despite the request being made under
section 65, it will also be covered by a written agreement under [the] proposed clause.’
[50] The interaction between a s.65 agreement and the model term was discussed at length
in the 16 July 2015 Award Flexibility decision (the July 2015 decision).7 It followed from
this analysis that a s.65 agreement could only provide for time off instead of payment for
overtime if this was permitted under a specific award clause, as a s.65 agreement could not of
itself trade off an overtime payment entitlement under the award for time off (whether on a
time for time basis or otherwise).
[51] The Full Bench decided through an abundance of caution to insert subclause 1.3 (now
paragraph A.1(j)) to make clear an employer’s obligations where a request for time off instead
of payment for overtime is made pursuant to s.65. In particular, that a request for a change to
working arrangements in accordance with s.65 can only be refused on reasonable business
grounds.8
[52] As the Full Bench has previously observed, in the absence of an award clause for time
off instead of payment for overtime, it would not be possible through a s.65 agreement to
trade off an entitlement to payment for time off. In other words, the issue is not about the
extent to which s.65 agreements should be constrained by the model term, but rather the
extent to which they should be allowed additional effect under it.
[2016] FWCFB 4258
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[53] As a s.65 agreement for time off instead of payment for overtime relies upon the
award clause for its operation, there is no obvious policy rationale for a s.65 agreement having
lesser safeguards than the award clause. Indeed it would be somewhat anomalous if those
employees who are entitled under s.65 to request a change in their working arrangements
because of their particular circumstances, were afforded a lesser level of protection than
employees generally.
[54] Further, if an employee and employer wish to enter into an ongoing arrangement for
time off instead of payment for overtime without having to make separate agreements for
each pay period, then they may seek to make an individual flexibility arrangement (IFA). As
the Full Bench observed in the July 2015 decision: ‘It is common ground that TOIL … fall[s]
within the scope of the model flexibility term in modern awards and accordingly could
potentially be the subject of an IFA’.9
[55] As suggested by the NFF, it is proposed to vary paragraph A.1(j) to make clear that all
of the requirements of clause A.1 apply to an arrangement to take time off instead of payment
for overtime that has been worked that is made under s.65 of the Act. We also agree with the
NFF’s observation that it is unnecessary to reference ‘the Act’ in full, as this is a defined term
in all modern awards. This change will also be made in the notes following paragraphs A.1(j)
and A.1(k).
[56] As to the matters raised by the AMWU, it is important to bear in mind that the
paragraph is not intended to be a complete reflection of the various elements of s.65. We do
not think it is necessary to reword the plain language paragraph in the manner proposed.
[57] The revised paragraph A.1(j) and note will provide as follows:
(j) An employee may, under section 65 of the Act, request to take time off, at a
time or times specified in the request or to be subsequently agreed by the
employer and the employee, instead of being paid for overtime worked by the
employee. If the employer agrees to the request then clause A.1 will apply,
including the requirement for separate written agreements under paragraph (b)
for overtime that has been.
NOTE: If an employee makes a request under section 65 of the Act for a
change in working arrangements, the employer may only refuse that request
on reasonable business grounds (see section 65(5) of the Act).
[58] We now turn to paragraph A.1(k):
(k) If, on the termination of the employee’s employment, time off for overtime worked by the
employee to which clause A.1 applies has not been taken, the employer must pay the
employee for the overtime at the overtime rate applicable to the overtime when worked.
Note: Under section 345(1) of the Act, a person must not knowingly or recklessly
make a false or misleading representation about the workplace rights of another person
under clause A.1.
[59] The comparable provision in the October 2015 model term said:
‘If, upon termination of employment, an employee has an accrued entitlement to take
time off in lieu of payment for overtime which the employee has not yet used, the
[2016] FWCFB 4258
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employee must be paid for the overtime at the overtime rate applying to the overtime
worked.’ (emphasis added)
[60] The NFF submits that the phrase ‘applicable to the overtime when worked’ is slightly
different to the phrase ‘applying to the overtime worked’ and could inadvertently change the
meaning of the provision if it was construed to introduce a new ‘point in time’ element to the
paragraph.
[61] Our intention is that the employee be paid at the same rate as the employee would
have been paid for the overtime when it was worked. Contrary to the NFF’s submission, both
the October 2015 and plain language versions of the model term have the same meaning10 and
both were intended to introduce a ‘point in time’ element.
3. Conclusion
[62] We propose to vary the April 2016 model term in the manner set out in this decision.
A marked up version of the April 2016 model term is set out at Attachment B and the final
version of the model term and template agreement are set out at Attachment C of this
decision.
[63] The 26 modern awards set out at Attachment D to the April 2016 decision will be
varied to insert the model term and associated schedule. Draft variation determinations will
be published shortly. Interested parties will have 7 days to comment on the draft variation
determinations.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR582172
[2016] FWCFB 4258
11
1 [2016] FWCFB 2602
2 These 26 awards currently provide for overtime but not for time off instead of payment for overtime.
3 Ai Group submission 23 May 2016 at paragraphs 8-10
4 NFF submissions 23 May 2016 at paragraph 22
5 Ibid
6 [2015] FWCFB 4658 at paragraph [7]
7 [2015] FWCFB 4466 at paragraphs [95]-[111]
8 Ibid and paragraph [277] i
9 [2015] FWCFB 4466 at paragraph [186]
10 [2016] FWCFB 2602 at paragraphs [15]-[17]
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB2602.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB4466.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB4466.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB4658.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016FWCFB2602.htm
[2016] FWCFB 4258
12
Attachment A— Summary of submissions received in relation to the April
2016 model term for time off instead of payment for overtime
Plain language draft —24 April 2016
decision
Submissions
A.1 Time off instead of payment for
overtime
(a) An employee and employer may
agree in writing to the employee
taking time off instead of being
paid for a particular amount of
overtime that has been worked by
the employee.
Ai Group suggested the following
amendments:
A.1 Time off instead in lieu of payment for
overtime
(a) An employee and employer may agree in
writing to the employee taking time off instead
in lieu of being paid for a particular amount of
overtime that has been worked by the employee.
NFF submitted:
“in lieu” replaced with “instead” – can no
longer use term TOIL
Plain English term introduces new concepts to
the introductory para:
- Must be in writing;
- Agreement must be for a particular
amount of overtime;
- Does not deal with when the time off
can be taken (moved to (e)(ii))
(b) Any amount of overtime that has
been worked by an employee in a
particular pay period and that is to
be taken as time off instead of the
employee being paid for it must be
the subject of a separate agreement
under clause A.1.
Ai Group suggested the following
amendments:
(b) Any amount of overtime that has been worked
by an employee in a particular pay period and
that is to be taken as time off instead in lieu of
the employee being paid for it must be the
subject of a separate agreement under clause
A.1.
NFF submitted:
The plain English term is more complex than
the original term. Suggest re-draft as follows:
“A separate written agreement must be
made by the employee and employer
for each pay period during which
time off is taken instead of payment
for overtime.”
(c) An agreement must state each of
the following:
(i) the number of overtime
hours to which it applies and
when those hours were
worked;
No comments received.
(ii) that the employer and
employee agree that the
Ai Group suggested the following
amendments:
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-aig-240516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-nff-230516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-aig-240516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-nff-230516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-aig-240516.pdf
[2016] FWCFB 4258
13
employee may take time off
instead of being paid for the
overtime;
(ii) that the employer and employee agree
that the employee may take time off
instead in lieu of being paid for the
overtime;
(iii) that, if the employee
requests at any time, the
employer must pay the
employee, for overtime
covered by the agreement
but not taken as time off, at
the overtime rate applicable
to the overtime when
worked;
No comments received.
(iv) that any payment mentioned
in subparagraph (iii) must be
made in the pay period
immediately following the
request.
NOTE: An example of the type of TOIL
agreement required by this clause is set out
at Schedule [x]. There is no requirement to
use the form of TOIL agreement set out at
Schedule [x]. A TOIL agreement can also
be made by an exchange of emails between
the employee and employer, or by other
electronic means.
Ai Group suggested the following
amendments:
(iv) that any payment mentioned in
subparagraph (iii) must be made in the
next pay period immediately following
the request.
AMWU submitted:
The note beneath A.1(c)(iv) should clarify that
if an “exchange of emails” is used to give effect
to a TOIL agreement (as opposed to the
template agreement), then the requirements
under A.1(c) still must be complied with. The
AMWU proposes that the following be inserted
at the end of the sentence:
“provided the exchange of emails or other
electronic means sets out the required matters in
subparagraph (c)(i)-(iv)”
NFF submitted:
(iv) should specify that it is the ‘employee’s
request’, as follows:
(iv) that any payment mentioned in
subparagraph (iii) must be made in the
pay period immediately following the
employee’s request.
Reference to TOIL will need to be removed in
the Note and in the proposed Schedule.
(d) The period of time off that an
employee is entitled to take is the
same as the number of overtime
hours worked.
EXAMPLE: An employee who worked 2
overtime hours is entitled to time off of 2
hours.
NFF submitted:
The plain English term is more complex than
the original term and could result in a change of
meaning. Suggest leaving as is, perhaps
replacing “ordinary time rate” with “ordinary
hourly rate” or equivalent term used in the
relevant modern award.
As the entitlement only operates where there is
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-nff-230516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-nff-230516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-amwu-230516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-aig-240516.pdf
[2016] FWCFB 4258
14
agreement, this should be reflected in the
example if it is to be included:
EXAMPLE: An employee who worked 2 overtime
hours can agree to take 2 hours’ time off.
(e) Time off must be taken:
(i) within the period of 6
months after the overtime is
worked; and
(ii) at a time or times within that
period of 6 months agreed
by the employee and
employer.
NFF submitted:
The plain English version of this clause does not
deal with the amount of time to be taken, and it
is not necessary to always refer to “the/that
period of 6 months”.
Suggest rewording:
(e) The agreed amount of time off must be taken:
(i) at a time or times agreed between the
employee and employer; and
(ii) within 6 months of the overtime being
worked.
(f) If the employee requests at any
time, to be paid for overtime
covered by an agreement under
clause A.1 but not taken as time
off, the employer must pay the
employee for the overtime, in the
pay period immediately following
the request, at the overtime rate
applicable to the overtime when
worked.
Ai Group suggested the following
amendments:
(f) If the employee requests at any time, to be paid
for overtime covered by an agreement under
clause A.1 but not taken as time off, the
employer must pay the employee for the
overtime, in the next pay period immediately
following the request, at the overtime rate
applicable to the overtime when worked.
NFF submitted:
While the word ‘nothwithstanding’ [sic] may be
considered archaic, it does have legal meaning.
To avoid potentially inadvertent consequences
from its omission, consideration could be given
to replacing the term with the term “despite”.
(g) If time off for overtime that has
been worked is not taken within the
period of 6 months mentioned in
paragraph (e), the employer must
pay the employee for the overtime,
in the pay period immediately
following those 6 months, at the
overtime rate applicable to the
overtime when worked.
Ai Group suggested the following
amendments:
(g) If time off for overtime that has been worked is
not taken within the period of 6 months
mentioned in paragraph (e), the employer must
pay the employee for the overtime, in the next
pay period immediately following those 6
months, at the overtime rate applicable to the
overtime when worked.
(h) The employer must keep a copy of
any agreement under clause A.1 as
an employee record.
No comments received.
(i) An employer must not exert undue
influence or undue pressure on an
employee to make, or not make, an
agreement under clause A.1.
NFF submitted:
The plain English version of this clause is
narrower scope than the October 2015 model
term.
(j) An employee may, under section
65 of the Fair Work Act, request to
take time off, at a time or times
specified in the request or to be
AMWU submitted:
The wording at A.1(j) should be clarified to
refer more directly to the request for flexible
working arrangements. The AMWU would
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-amwu-230516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-nff-230516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-aig-240516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-nff-230516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-aig-240516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-nff-230516.pdf
[2016] FWCFB 4258
15
subsequently agreed by the
employer and the employee,
instead of being paid for overtime
worked by the employee. Clause
A.1 applies to any such time off
granted by the employer as if it
were time off covered by an
agreement under clause A.1.
NOTE: If an employee makes a request
under section 65 of the Fair Work Act for
a change in working arrangements, the
employer may only refuse that request on
reasonable business grounds (see section
65(5) of the Fair Work Act).
propose to delete the plain language clause and
replace with the following:
“If an employee makes a request for flexible
working arrangements under s.65 of the Fair
Work Act, and the request is to take time off
instead of being paid overtime, clause A.1
applies to any such time off granted by the
employer as if it were time off covered by an
agreement under clause A.1.”
In clarifying the interaction between the model
term and s. 65 of the Fair Work Act, the note
underneath A.1(j) makes mention of the
employer only being allowed to refuse a request
on reasonable business grounds. The AMWU
proposes that the employer’s obligation to
accept or refuse the request within 21 days
should also be mentioned as follows:
“and must provide a written response to the
request within 21 days”
NFF submitted:
As the Act is a defined term in all modern
awards, it does not need to be referenced in full.
The words “as if it were time off covered by an
agreement under…” could be removed, given
that despite the request being made under
section 65, it will also be covered by a written
agreement under proposed clause.
As above, the Act is a defined term and does not
need to be referenced in full. The word “only”
appears before the word “on” in section 65(5) of
the Act.
(k) If, on the termination of the
employee’s employment, time off
for overtime worked by the
employee to which clause A.1
applies has not been taken, the
employer must pay the employee
for the overtime at the overtime
rate applicable to the overtime
when worked.
NOTE: Under section 345(1) of the Fair
Work Act, a person must not knowingly or
recklessly make a false or misleading
representation about the workplace rights
of another person under clause A.1.
NFF submitted:
The phrase “applicable to the overtime when
worked” is slightly different to the phrase
“applying to the overtime worked” and could
inadvertently change meaning if construed to
introduce a new ‘point in time’ element to the
clause.
2. Schedule X––Template agreement for
time off instead of payment for overtime
No comments received.
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-nff-230516.pdf
https://www.fwc.gov.au/sites/awardsmodernfouryr/common/am2014300-sub-nff-230516.pdf
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Attachment B— Marked up version of the Model term
A.1 Time off instead of payment for overtime
(a) An employee and employer may agree in writing to the employee taking time
off instead of being paid for a particular amount of overtime that has been
worked by the employee.
(b) Any amount of overtime that has been worked by an employee in a particular
pay period and that is to be taken as time off instead of the employee being
paid for it must be the subject of a separate agreement under clause A.1.
(c) An agreement must state each of the following:
(i) the number of overtime hours to which it applies and when those hours
were worked;
(ii) that the employer and employee agree that the employee may take time
off instead of being paid for the overtime;
(iii) that, if the employee requests at any time, the employer must pay the
employee, for overtime covered by the agreement but not taken as time
off, at the overtime rate applicable to the overtime when worked;
(iv) that any payment mentioned in subparagraph (iii) must be made in the
next pay period immediately following the request.
Note: An example of the type of TOIL agreement required by this clause is set
out at Schedule [x]. There is no requirement to use the form of TOIL
agreement set out at Schedule [x]. A TOIL An agreement under clause A.1 can
also be made by an exchange of emails between the employee and employer, or
by other electronic means.
(d) The period of time off that an employee is entitled to take is the same as the
number of overtime hours worked.
EXAMPLE: By making an agreement under clause A.1 Aan employee who
worked 2 overtime hours is entitled to time off 2 hours’ time off.
(e) Time off must be taken:
(i) within the period of 6 months after the overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the employee
and employer.
(f) If the employee requests at any time to be paid for overtime covered by an
agreement under clause A.1 but not taken as time off, the employer must pay
the employee for the overtime, in the next pay period immediately following
the request, at the overtime rate applicable to the overtime when worked.
(g) If time off for overtime that has been worked is not taken within the period of 6
months mentioned in paragraph (e), the employer must pay the employee for
the overtime, in the next pay period immediately following those 6 months, at
the overtime rate applicable to the overtime when worked.
[2016] FWCFB 4258
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(h) The employer must keep a copy of any agreement under clause A.1 as an
employee record.
(i) An employer must not exert undue influence or undue pressure on an employee
in relation to a decision by the employee to make, or not make, an agreement to
take time off instead of payment for overtime. under clause A.1.
(j) An employee may, under section 65 of the Fair Work Act Act, request to take
time off, at a time or times specified in the request or to be subsequently agreed
by the employer and the employee, instead of being paid for overtime worked
by the employee. If the employer agrees to the request then clause A.1 will
apply, including the requirement for separate written agreements under
paragraph (b) for overtime that has been worked. Clause A.1 applies to any
such time off granted by the employer as if it ere time off covered by an
agreement under clause A.1.
Note: If an employee makes a request under section 65 of the Fair Work Act
Act for a change in working arrangements, the employer may only refuse that
request on reasonable business grounds (see section 65(5) of the Fair Work Act
Act).
(k) If, on the termination of the employee’s employment, time off for overtime
worked by the employee to which clause A.1 applies has not been taken, the
employer must pay the employee for the overtime at the overtime rate
applicable to the overtime when worked.
Note: Under section 345(1) of the Fair Work Act Act, a person must not
knowingly or recklessly make a false or misleading representation about the
workplace rights of another person under clause A.1.
18
Attachment C— Final model term and template agreement
A.1 Time off instead of payment for overtime
(a) An employee and employer may agree in writing to the employee taking time
off instead of being paid for a particular amount of overtime that has been
worked by the employee.
(b) Any amount of overtime that has been worked by an employee in a particular
pay period and that is to be taken as time off instead of the employee being
paid for it must be the subject of a separate agreement under clause A.1.
(c) An agreement must state each of the following:
(i) the number of overtime hours to which it applies and when those hours
were worked;
(ii) that the employer and employee agree that the employee may take time
off instead of being paid for the overtime;
(iii) that, if the employee requests at any time, the employer must pay the
employee, for overtime covered by the agreement but not taken as time
off, at the overtime rate applicable to the overtime when worked;
(iv) that any payment mentioned in subparagraph (iii) must be made in the
next pay period following the request.
Note: An example of the type of agreement required by this clause is set out at
Schedule [x]. There is no requirement to use the form of agreement set out at
Schedule [x]. An agreement under clause A.1 can also be made by an exchange
of emails between the employee and employer, or by other electronic means.
(d) The period of time off that an employee is entitled to take is the same as the
number of overtime hours worked.
EXAMPLE: By making an agreement under clause A.1 an employee who
worked 2 overtime hours is entitled to 2 hours’ time off.
(e) Time off must be taken:
(i) within the period of 6 months after the overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the employee
and employer.
(f) If the employee requests at any time to be paid for overtime covered by an
agreement under clause A.1 but not taken as time off, the employer must pay
the employee for the overtime, in the next pay period following the request, at
the overtime rate applicable to the overtime when worked.
(g) If time off for overtime that has been worked is not taken within the period of 6
months mentioned in paragraph (e), the employer must pay the employee for
[2016] FWCFB 4258
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the overtime, in the next pay period following those 6 months, at the overtime
rate applicable to the overtime when worked.
(h) The employer must keep a copy of any agreement under clause A.1 as an
employee record.
(i) An employer must not exert undue influence or undue pressure on an employee
in relation to a decision by the employee to make, or not make, an agreement to
take time off instead of payment for overtime.
(j) An employee may, under section 65 of the Act, request to take time off, at a
time or times specified in the request or to be subsequently agreed by the
employer and the employee, instead of being paid for overtime worked by the
employee. If the employer agrees to the request then clause A.1 will apply,
including the requirement for separate written agreements under paragraph (b)
for overtime that has been worked.
Note: If an employee makes a request under section 65 of the Act for a change
in working arrangements, the employer may only refuse that request on
reasonable business grounds (see section 65(5) of the Act).
(k) If, on the termination of the employee’s employment, time off for overtime
worked by the employee to which clause A.1 applies has not been taken, the
employer must pay the employee for the overtime at the overtime rate
applicable to the overtime when worked.
Note: Under section 345(1) of the Act, a person must not knowingly or
recklessly make a false or misleading representation about the workplace rights
of another person under clause A.1.
20
AGREEMENT FOR TIME OFF INSTEAD OF PAYMENT FOR OVERTIME
Name of employee: _____________________________________________
Name of employer: _____________________________________________
The employer and employee agree that the employee may take time off instead of being
paid for the following amount of overtime that has been worked by the employee:
Date and time overtime started: ___/___/20___ ____ am/pm
Date and time overtime ended: ___/___/20___ ____ am/pm
Amount of overtime worked: _______ hours and ______ minutes
The employer and employee further agree that, if requested by the employee at any
time, the employer must pay the employee for overtime covered by this agreement but
not taken as time off. Payment must be made at the overtime rate applying to the
overtime when worked and must be made in the next pay period following the request.
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
Date signed: ___/___/20___
