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, 11 JULY 2016
4 yearly review of modern awards - common issue - award flexibility - time off in lieu of
payment for overtime.
CONTENTS
Chapters Page Paragraph
1. Introduction 3 [1]
2. The Submissions 3 [7]
3. Consideration 5 [17]
4. Conclusion 20 [101]
Attachment A—Final model TOIL term and template
agreement
25
Attachment B— List of Submissions 28
Attachment C—The existing TOIL provisions in 49 modern
awards
29
Attachment D— List of 44 Modern Awards to be Varied 42
[2016] FWCFB 4579
DECISION
E AUSTRALIA FairWork Commission
[2016] FWCFB 4579
2
ABBREVIATIONS
8 July 2016 decision 4 yearly review of modern awards—Common issue—Award
Flexibility decision, 8 July 2016 [2016] FWCFB 4258
ABI Australian Business Industrial and the New South Wales Business
Chamber
Ai Group Australian Industry Group
April 2016 decision 4 yearly review of modern awards - common issue - award flexibility
- time off in lieu of payment for overtime decision, 24 April 2016
[2016] FWCFB 2602
AMWU “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing Workers’
Union (AMWU)
AMWU—Vehicle Division “Automotive, Food, Metals, Engineering, Printing and Kindred
Industries Union” known as the Australian Manufacturing Workers’
Union (AMWU)—Vehicle Division
CFMEU (C&G) Construction, Forestry, Mining and Energy Union—Construction &
General Division
Commission Fair Work Commission
Family Leave Test Case Family Leave Test Case [Print L9048] (1994) 57 IR 121
FW Act Fair Work Act 2009
FW Regulations Fair Work Regulations 2009
July 2015 decision 4 yearly review of modern awards—Common issue—Award
Flexibility decision, 16 July 2015 [2015] FWCFB 4466
NES National Employment Standards
NFF National Farmers’ Federation
October 2015 decision 4 Yearly Review of Modern Awards—Award flexibility common
issue—time off in lieu of payment for overtime—model term decision,
6 October 2015 [2015] FWCFB 6847
October 2015 model TOIL
term
the model TOIL term determined in the October 2015 decision at
Attachment 3 to that decision
Review 4 yearly review of modern awards
RS&R Award Vehicle Manufacturing, Repair, Services and Retail Award 2010
TCFUA Textile, Clothing and Footwear Union of Australia
TOIL time off instead of payment for overtime
[2016] FWCFB 4579
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1. Introduction
[1] The July 2015 Award Flexibility decision1 (the July 2015 decision) dealt with a
number of claims to vary certain modern awards in respect of make up time and time off
instead of payment for overtime (TOIL). The make up time claim was rejected. At paragraphs
[279] and [309] of that decision the Full Bench expressed some provisional views about the
type of model term to be inserted into the 113 modern awards set out in Attachment F to the
July 2015 decision. The remaining nine modern awards do not contain provisions for paid
overtime and hence the issue of time off instead of overtime does not arise.
[2] Directions were issued to provide interested parties with an opportunity to file written
submissions in relation to the content of the provisional model term and the proposition that
the model term be inserted in 113 modern awards. The hearings in respect of these issues
were split – the hearing on 4 September 2015 dealt with the content of the provisional model
term and a subsequent hearing on 10 December 2015 dealt with the proposition that the model
term be inserted into 113 modern awards.
[3] A decision issued on 6 October 20152 (the October 2015 decision) dealt with the
submissions concerning the content of the model term. In that decision the Full Bench
accepted a number of amendments proposed by employer parties.3
[4] A decision issued on 24 April 20164 (the April 2016 decision) proposed further
changes to the form and content of the model TOIL term. Draft variation determinations were
published on 9 May 2016 and interested parties were given 14 days in which to comment.
The publication of the draft determinations also provided any interested party with an
opportunity to comment on the plain language redraft of the model term.
[5] The April 2016 decision also dealt with the variation of the 26 modern awards set out
in Attachment D of that decision5 to insert the model term and associated Schedule and also
set out the process that the Commission will adopt for the remaining 96 modern awards.6
[6] A decision issued on 8 July 20167 (the 8 July 2016 decision) dealt with submissions
received in relation to the proposed plain language model term and finalised the model term
and associated template agreement. The final version of the model term and template
agreement is set out at Attachment A to this decision.
2. The Submissions
[7] In accordance with the Directions8 issued on 6 October 2015 a number of parties filed
submissions. Attachment B contains a list of the submissions received. The submissions filed
fall into two broad categories—general submissions and award specific submissions.
[8] This decision deals with the 49 modern awards which contain existing ‘time off in lieu
of overtime’ (TOIL) provisions, but which are not the subject of an award specific
submission. These 49 TOIL provisions are set out at Attachment C to this decision and are
grouped into like categories. These modern awards are the subject of the general submissions
advanced by Australian Industry Group (Ai Group) and Australian Business Industrial and the
New South Wales Business Chamber (jointly ABI).9 Ai Group and ABI submit that these 49
modern awards should not be varied to include the model term.
[2016] FWCFB 4579
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[9] The remaining modern award which contains an existing TOIL provision, but which
was not the subject of an award specific submission, is the Vehicle Manufacturing, Repair,
Services and Retail Award 2010 (the RS&R Award). As was said in the April 2016 decision10
another Full Bench is currently dealing with a number of substantive issues in relation to the
RS&R Award. We will deal with any variation to the TOIL provision in that award after the
other Full Bench has determined the issues before it.
[10] Ai Group and ABI submit that the inclusion of the model TOIL term in the 49 awards
which currently contain a TOIL provision is not necessary in order to achieve the modern
awards objective.11 It is submitted that the model TOIL term would impose an additional
burden on employees and reduce flexibilities in those awards.
[11] In summary, Ai Group submitted that:
while the insertion of the model clause may decrease regulatory burden on some
employers, it would subject many employers to unnecessary change with respect to
TOIL provisions which have been working well over a long period of time;12
employers and employees who have relied on existing TOIL provisions should not
face further change where there is little or no evidence of those provisions falling
short of providing a fair and relevant safety net or meeting the modern awards
objective;13
the desire for a universal provision must be balanced against the other considerations
that make up the modern awards objective, in particular ss.134(1)(d), (f) and (g);
the pursuit of simple, easy to understand awards system does not mandate the
substitution of current provisions to ensure awards meet the modern awards
objective;
removal of a provision in favour of a clause that places greater constraints on the use
of TOIL by employers and employees would be contrary to ss.134(1)(d) and
134(1)(f) of the Fair Work Act 2009 (the FW Act);14 and
the model clause should be regarded as the minimum level of flexibility that
employers and employees should have access to with regard to time off instead of
overtime and consequently where the existing provision allows greater flexibility the
new clause should not be inserted.15
[12] In relation to the proposition that the TOIL provisions in these 49 modern awards
‘have been working well over a long period’, Ai Group acknowledged that there was no
evidentiary basis for the assertion and that it was based on the absence of problems that have
been brought to Ai Group’s attention and ‘the view that the organisation has formed in
dealing with employers in relation to these clauses over many years’.16
[13] ABI contends that the existing TOIL provisions prima facie satisfy the modern awards
objective and:
[2016] FWCFB 4579
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‘In order to displace that prima facie position, the Preliminary Issues decision requires
probative evidence in support of the variation.’17
[14] We do not accept the proposition that ‘probative evidence’ is required before the TOIL
provisions in these 49 modern awards can be varied. In the Preliminary Issues decision the
Full Bench said:
‘The Commission is obliged to ensure that modern awards, together with the NES, provide a
fair and relevant minimum safety net taking into account, among other things, the need to
ensure a ‘stable’ modern award system (s.134(1)(g)). The need for a ‘stable’ modern award
system suggests that a party seeking to vary a modern award in the context of the Review must
advance a merit argument in support of the proposed variation. The extent of such an argument
will depend on the circumstances. We agree with ABI’s submission that some proposed
changes may be self evident and can be determined with little formality. However, where a
significant change is proposed it must be supported by a submission which addresses the
relevant legislative provisions and be accompanied by probative evidence properly directed to
demonstrating the facts supporting the proposed variation.
In conducting the Review the Commission will also have regard to the historical context
applicable to each modern award. Awards made as a result of the award modernisation
process conducted by the former Australian Industrial Relations Commission (the AIRC)
under Part 10A of the Workplace Relations Act 1996 (Cth) were deemed to be modern awards
for the purposes of the FW Act (see Item 4 of Schedule 5 of the Transitional Act). Implicit in
this is a legislative acceptance that at the time they were made the modern awards now being
reviewed were consistent with the modern awards objective. The considerations specified in
the legislative test applied by the AIRC in the Part 10A process is, in a number of important
respects, identical or similar to the modern awards objective in s.134 of the FW Act.18 In the
Review the Commission will proceed on the basis that prima facie the modern award being
reviewed achieved the modern awards objective at the time that it was made.’19
[15] In our view the changes we propose to make are self evident as it is clear on the face
of the provisions we propose to vary that they do not provide a fair and relevant safety net and
hence do not achieve the modern awards objective. We would also observe that many of the
provisions which we are considering in this decision are not consistent with the Family Leave
Test Case standard20.
[16] Submissions in reply were received from the Australian Manufacturing Workers’
Union (AMWU), AMWU (Vehicle division) and the Textile Clothing and Footwear Union of
Australia (TCFUA). In their submissions the unions contested Ai Group’s claim that the
existing provisions have been ‘working well over a long period of time’21. They also disputed
the claim that the model term would impose additional burdens as a number of existing
provisions already require written agreement for such arrangements. Further, they note that a
number of existing provisions provide that the time off can be taken up to six months after the
overtime is worked.
3. Consideration
[17] Ai Group’s submission focusses on the maintenance of what it refers to as the ‘greater
flexibility’ afforded by the existing TOIL provisions in these 49 modern awards. Ai Group’s
submission is concerned with the effect upon employers of replacing the existing clauses with
the model term:
[2016] FWCFB 4579
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‘It is our contention that the model clause should be regarded as the minimum level of flexibility
that employers and employees should have access to with regard to TOIL. Thus, where there is
a pre-existing approach in an award that presently affords greater flexibility, a more restrictive
provision should not be inserted.’22
[18] Section 156 of the FW Act provides that the Commission must conduct a 4 yearly
review of modern awards (the Review). These proceedings form part of the Review. In
particular, s.156 imposes an obligation on the Commission to review all modern awards and
each modern award must be reviewed in its own right. The modern awards objective (in s.134
of the FW Act) applies to the Review.
[19] The modern awards objective is directed at ensuring that modern awards, together
with the National Employment Standards (NES) provide a ‘fair and relevant minimum safety
net of terms and conditions’, taking into account the particular considerations identified in
paragraphs 134(1)(a) to (h) of the FW Act.
[20] There is a degree of tension between some of the s.134 considerations and the
Commission’s task is to balance these considerations and ensure that modern awards, together
with the NES, provide a fair and relevant safety net of terms and conditions. In performing
this task the Commission must take into account the likely impact of any exercise of modern
award powers on business (s.134(1)(f)), but that is not the sole relevant consideration. The
legislative directive is that the Commission must ensure that modern awards, together with the
NES provide ‘a fair and relevant minimum safety set of terms and conditions’. Fairness is to
be assessed from the perspective of both employers and employees.23
[21] The submissions advanced by Ai Group and ABI need to be placed in the appropriate
context, and for that reason it is necessary to say something about the July and October 2015
decisions and the April 2016 and 8 July decisions.
[22] These proceedings were initiated by an Ai Group claim to insert a model TOIL term
into a number of modern awards. The proposed model TOIL term (as initially formulated)
was in the following terms:
(a) An employee may elect, with the consent of the employer, to take time off in
lieu of payment for overtime at a time or times agreed with the employer.
(b) Overtime taken as time off during ordinary time hours shall be taken at the
ordinary time rate, that is an hour for each hour worked.
(c) An employer shall, if requested by an employee, provide payment, at the rate
provided for the payment of overtime in the award, for any overtime worked
under paragraph (c) of this subclause where such time has not been taken
within four weeks of accrual.24
[23] During the course of the hearing on 5 May 2015 the Full Bench raised a number of
issues concerning Ai Group’s proposed model clause. These issues primarily related to the
payment of untaken time off instead of overtime upon termination of employment and the
need to address the potential for the indefinite accrual of such time off. Ai Group addressed
these issues in its supplementary written submission of 18 May 2015 and proposed the
addition of the following paragraphs to its proposed model clause:
[2016] FWCFB 4579
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(d) Subject to an employee’s right under (c), where the employee and employer are
unable to reach agreement within 12 months as to when the time off in lieu will be
taken, the employer may require the employee to take time off in lieu at a time of its
choosing. This will be subject to the employer providing the employee with at least
4 weeks’ notice of the need to take such time off.
(e) If, upon termination of employment, an employee has an accrued entitlement to take
time off in lieu which the employee has not yet accessed, the employee will be paid at
the overtime rates applicable under the award for the corresponding overtime
worked.’
[24] Ai Group submitted that the additional paragraphs, (d) and (e) above, were necessary
to ensure that the relevant modern awards met the modern awards objective as contemplated
by s.138. In respect of proposed paragraph (d), Ai Group submitted that it was intended to
ensure that ‘employers retain some influence over the level of TOIL accruals beyond the
initial decision to agree to this flexibility’ while ‘not removing the right of an employee to
have his or her accrued entitlements paid out at overtime rates’.25 It was also submitted that
proposed paragraph (d) would be likely to ‘ensure employees are incentivised to access TOIL
in a timely manner, rather than accruing it for an extended period or indefinitely’.26
[25] Ai Group proposed to insert their model TOIL term into 26 modern awards that did
not contain a TOIL provision and to delete existing TOIL provisions in 10 modern awards
and replace them with their model TOIL term. In each of these 10 modern awards the existing
TOIL provision provided for time off instead of payment for working overtime to be
calculated on the basis of time for penalty.
[26] In the July 2015 proceedings Ai Group readily conceded that the merits of its claim
relied ‘very heavily on the logic and findings’27 of the Family Leave Test Case. Ai Group also
submitted that the context of the Family Leave Test Case decisions ‘remain salient in current
context and they give great force to our claim’28 and that the model TOIL term proposed
replicated the TOIL facilitative provision determined in the Family Leave Test Case.29
[27] As the Full Bench observed in the July 2015 decision:
‘In dealing with matters arising in the Review the Commission will have regard to the relevant
historical context and will take into account previous decisions relevant to any contested issue.
The context in which those decisions were made will also need to be considered, as the Full
Bench observed in the Preliminary Jurisdictional Issues decision:
“ ... In conducting the Review it is appropriate that the Commission take into account
previous decisions relevant to any contested issue. The particular context in which
those decisions were made will also need to be considered. Previous Full Bench
decisions should generally be followed, in the absence of cogent reasons for not doing
so.” 30
The above observation is particularly relevant in the present proceedings as Ai Group’s claims
are said to be based on model clauses determined by a Full Bench of the AIRC in the 1994
Family Leave Test Case decisions (the Family Leave Test Case).’31
[28] The Family Leave Test Case deals with the calculation of TOIL and endorses the
proposition that the model TOIL provision provide for time off on an ‘hour for hour’ basis
rather than a time for penalty rate basis. In that regard, the Family Leave Test Case provided
support for Ai Group’s TOIL claim. However, as is apparent from the arbitral history,32 the Ai
[2016] FWCFB 4579
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Group claim departs from the Family Leave Test Case standard in terms of the safeguards
incorporated into the proposed model term.33
[29] The July 2015 decision addresses the 1994 Family Leave Test Case decision at
paragraphs [25]–[42] and [249]–[255]. The Full Bench acknowledged that ‘there are
similarities and some significant differences between the current statutory context and the
context at the time the Family Leave Test Case was decided’34 and concluded:
‘We have had regard to these contextual differences in our consideration of the Family Leave
Test Case. Despite the differences in the statutory framework we have concluded that some
aspects of the Family Leave Test Case TOIL provision retain their cogency in the current
statutory context.’35
[30] The Full Bench went on to reject the aspect of the Ai Group TOIL claim which sought
to delete 10 existing TOIL provisions that provided ‘time for penalty’ and replace those
provisions with Ai Group’s model clause. The Full Bench’s rejection of Ai Group’s claim
was on the basis that it was inconsistent with the Family Leave Test Case:36
‘…the Family Leave Test Case deals with the approach to be taken to existing award provisions.
The Full Bench decided that where an award currently provided for TOIL at overtime rates,
then such a provision should be retained and the model term not be inserted into the award in
question …
Ai Group’s application is inconsistent with the approach adopted in the Family Leave Test
Case in which existing TOIL provisions, which provided time off to be calculated at overtime
rates, were preserved and not varied to insert the model TOIL facilitative provision.’37
[31] Further, as noted at paragraph [264] of the July 2015 decision, the test case standard
includes three safeguards which do not feature in Ai Group’s claim:
‘(i) no provision is made for majority agreement prior to individual access to TOIL;
(ii) no provision is made to notify the unions, which are both party to the award and who
have members employed in the particular enterprise, of the intention to utilise the
facilitative provision and to provide those unions with an opportunity to participate in
negotiations; and
(iii) no provision is made in respect of recording the introduction of such facilitation.’38
[32] In the July 2015 decision the Full Bench was not persuaded that safeguards (i) and (ii)
were necessary to achieve the modern awards objective:
‘The nature of the flexibility which is the subject of a TOIL provision only affects the employer
and the individual employee concerned and the utilisation of the provision will depend on
individual preference. It may be contrasted with a facilitative provision relating to a change to
the spread of hours or an annual close down, which will affect most or all employees. In such
cases a majority agreement safeguard may be appropriate.
In support of safeguard (ii), it is submitted that access to union advice will ensure that
employees are aware of their rights before using the provisions. In our view it is more
appropriate to provide clear decision rules regulating TOIL in the award clause itself. We
propose to incorporate a number of safeguards which will provide clear rules about the taking
and recording of TOIL.’39
[2016] FWCFB 4579
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[33] In relation to safeguard (iii), the Family Leave Test Case standard provided that once
the employer and the majority of employees in an enterprise had agreed to establish a TOIL
system then the terms of that arrangement were required to be set out in the time and wages
records kept pursuant to the relevant regulations.40
[34] In the July 2015 decision the Full Bench formulated a provisional model TOIL term,
set out at paragraph [267] of that decision. The Full Bench expressed a provisional view only
‘because we are conscious that the scope and content of the variations we propose were not
fully canvassed during the proceedings’.41 Interested parties were provided with an
opportunity to make further submissions about the content of the model TOIL term.
[35] The provisional model TOIL term included a requirement that a TOIL agreement
between an employee and employer be in writing and be retained as an ‘employee record’
(within the meaning of the Fair Work Regulations 2009 (the FW Regulations)). These
safeguards were intended to replace safeguard (iii) from the Family Leave Test Case standard.
Safeguard (iii) was no longer appropriate in its previous form as the July 2015 Full Bench had
decided to remove the requirement for a majority of employees in an enterprise to agree
before a TOIL system could operate at that enterprise.
[36] As mentioned earlier, the October 2015 decision dealt with submissions concerning
the content of the provisional model TOIL term and accepted a number of amendments
proposed by employer parties, in particular:
the requirement in subclause 1.2(c) that, within four weeks of the overtime being
worked, the employee and employer must agree on when TOIL will be taken, was
deleted;42 and
the requirement in subclause 1.2(d) to take TOIL within 12 weeks of the overtime
being worked was amended, the reference to ‘12 weeks’ was replaced with ‘six
months’.43
[37] A marked up version of the provisional model TOIL term incorporating the changes
made is set out at paragraph [68] of the October 2015 decision.
[38] To assist in reducing the regulatory burden associated with the introduction of the
model TOIL term the October 2015 Full Bench proposed adding a schedule setting out a
template TOIL agreement. The intention is that the schedule will be inserted in each modern
award incorporating the model term. The template is set out at Attachment 2 to the October
2015 decision. The Full Bench made the following observation in relation to the template:
‘We emphasise that the template agreement is included by way of example and there will be no
requirement to use it. While the template agreement is in the form of a signed hard copy
document, a TOIL agreement could be made through an exchange of emails between the
employer and employee or by other electronic means.’44
[39] The April 2016 decision gave further consideration to the content of the model TOIL
term, so that it is expressed in plain language. A number of changes were made to the model
TOIL term and the template TOIL agreement to provide greater clarity and to reduce
regulatory burden. In particular, Clause 1.2(b) of the October 2015 model TOIL term was
varied, as shown below:
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‘Each Any amount of overtime that has been worked by an employee in a 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.’
[40] This amendment has broadly the same substantive effect as clause 1.2(a) of the
October 2015 model TOIL term, but provides greater clarity and reduces regulatory burden. It
requires that a separate agreement be made for each occasion on which it is agreed to take
time off for a single amount or multiple amounts of overtime that have been worked in a
particular pay period. For example, if an employee had worked one hour of overtime on each
of six days in the same pay period, the employee and the employer could make a single
written agreement that the employee may take those six hours of overtime worked as time off,
instead of being paid for the overtime.
[41] As we have mentioned, the 8 July 2016 decision dealt with submissions received in
relation to the proposed plain language model term and finalised the model term and
associated template agreement. The final version of the model term and template agreement
is set out at Attachment A to this decision.
[42] The terms of the TOIL provisions in the 49 modern awards which are the subject of
this decision, vary considerably. To some extent the degree of variation may reflect the fact
that some pre-reform awards, on which the modern awards are based, were varied to give
effect to the Family Leave Test Case decision, prior to the observations made in the October
1995 Third Safety Net decision (see paragraphs [26]–[38] of the July 2015 decision).
[43] The existing TOIL provision in the 49 modern awards which are the subject of this
decision are set out in Attachment C. The TOIL provisions in these 49 modern awards can be
grouped into 7 categories:
(i) 15 modern awards do not specify a timeframe within which TOIL must be taken
and make no provision for the payment of the overtime worked in the event that
TOIL is not taken (see awards 1–15 in Attachment C)
(ii) 17 modern awards do not specify a timeframe within which TOIL must be taken,
but do require an employer, if requested by an employee, to pay the employee for
the overtime worked if the TOIL is not taken within 4 weeks of accrual (see
awards 16–32 in Attachment C)
(iii)8 modern awards require TOIL to be taken within 4 weeks of accrual (see awards
33–40 in Attachment C)
(iv)5 modern awards require TOIL to be taken within 12 months of accrual but specify
that if ‘the leave is not taken for whatever reason, payment for time accrued at
overtime rates will be made at the expiry of the 12 month period or on termination’
(see awards 41–45 in Attachment C)
(v) the Aluminium Industry Award 2010 (award 46 in Attachment C) provides that
TOIL must be taken ‘in the same roster cycle as the working of the overtime.’
(vi) the Aged Care Award 2010 (award 47 in Attachment C) provides that if TOIL is
not taken within 3 months of accrual then ‘it is to be paid out at the appropriate
overtime rate based on the rates of pay applying at the time payment is made’
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(vii) 2 modern awards have unique provisions; the Book Industry Award 2010 (award
48 in Attachment C) provides:
‘Where an employee is required to work overtime in any week, the employee will be
entitled to time off for a period equivalent to the overtime worked to be taken at a time
mutually agreed. Where such time off has not been taken by the end of the month
following, the employee will be paid for such overtime at the rate of time and a half
for the first eight overtime hours in any week and at the rate of double time for all
overtime hours in excess of eight hours in any week.’
Clause 26.3 of the Electrical Power Industry Award 2010 (award 49 in
Attachment C) provides:
‘Where overtime is worked and payment is due in the terms of this clause, time off may
be granted instead of payment on the following basis:
(a) One day off may be substituted for a portion of the payment due with the balance
of the payment being made in money where:
(i) at least a full day of overtime is worked on a Saturday or Sunday by a day
worker; or
(ii) at least a full shift of overtime is worked on a rostered day off by a
shiftworker, or where a shiftworker works a double shift in the absence of the
incoming shift relief.
(b) A maximum of 10 such days off will be granted in any year. The year period for
the granting of the maximum of 10 days will be the leave year for each employee. The
taking of time is subject to operational requirements.
(c) The granting of such time off will not be used as a basis to increase the number of
employees located at any establishment.’
[44] The existing TOIL provisions in these 49 modern awards differ from both the Family
Leave Test Case standard and the April 2016 model TOIL term, in a number of important
respects. The six key differences are set out below.
[45] First, only five of the 49 modern awards require employers to retain a record of a
TOIL agreement, and that requirement is expressed differently in each of the five modern
awards;
clause 22.2(d) of the Market and Social Research Award 2010 requires that each
TOIL agreement ‘be recorded in the time and wages records, personnel file or
forms appropriate to the enterprise’ (see award 28 in Attachment C);
clause 23.4(d)(iv) of the Amusement, Events and Recreation Award 2010 provides
that each TOIL agreement ‘be recorded in the time and wages book’(see award 29
in Attachment C);
clause 26.4(c) of the Fitness Industry Award 2010 provides that the TOIL
agreement be set out ‘in the time and wages record’(see award 30 in Attachment
C);
clause 21.7(a) of the Supported Employment Services Award 2010 provides that
TOIL agreements are ‘to be in writing and be kept with the time and wages
records’ (see award 37 in Attachment C); and
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clause 34.5(d) of the Legal Services Award 2010 provides that ‘the employer must
keep accurate records of time accrued as time off instead of payment for overtime
(see award 45 in Attachment C).
[46] In addition, four modern awards provide that a TOIL agreement must be ‘in writing’,
but do not contain a record keeping requirement (see awards 33–35 and 39 in Attachment C).
[47] As we have mentioned, the Family Leave Test Case standard required the terms of
TOIL arrangements at an enterprise to be set out in the time and wages records kept pursuant
to regulations 131A–131R of the Industrial Relations Regulations. The contemporary
equivalents of those regulatory provisions are s.535 of the FW Act and Division 2 of Part 3-6
of the FW Regulations.
[48] Section 535(1) of the FW Act requires an employer to make, and keep for seven years,
‘employee records’ of the kind prescribed in the regulations in relation to each of its
employees. The FW Regulations specify the kinds of records that must be made and kept.
Regulation 3.31 provides that an ‘employee record’ must be ‘in a legible form and in the
English language’, and ‘in a form that is readily accessible to an inspector’. The reference in
modern awards to ‘time and wages records’ is archaic and does not reflect contemporary
regulatory language.
[49] The model term requires that each agreement be in writing and be retained as an
employee record.
[50] It is important to appreciate that a TOIL term is a facilitative provision – the
underlying entitlement to the payment of additional remuneration for working overtime is
retained but by individual agreement an employee may take time off instead. It is a self-
executing provision which, unlike enterprise agreements, comes into effect without
Commission scrutiny. Given the nature of the provision it is entirely appropriate that
agreements to take time off instead of payment for overtime be in writing and retained as
employee records.
[51] The requirement that an agreement be in writing ensures that both parties are aware of
their rights and obligations, and provides an important safeguard for employees. As the Full
Bench observed in the October 2015 decision:
‘In circumstances where TOIL is taken at the ordinary time rate, that is an hour TOIL for each
hour of overtime worked, employers have a financial incentive to encourage such
arrangements. It is important that such a financial incentive not result in employees being
pressured into entering into TOIL arrangements. The requirement for a separate written
agreement both evidences the consensual nature of the arrangement which has been entered
into and provides an important safeguard for employees.’45
[52] The template agreement referred to earlier reduces the regulatory burden associated
with the requirement that agreements be in writing. Further, as stated in the October 2015
decision, while the template agreement is in the form of a signed hard copy, an agreement
under the model term can be made through an exchange of emails between an employer and
employee or by other electronic means.
[2016] FWCFB 4579
13
[53] It is also important that these agreements be retained as employee records. Such a
requirement is consistent with the Family Leave Test Case standard and forms part of the
model term. The requirement that such an agreement be in writing also provides a safeguard
for employers should a dispute subsequently arise regarding the payment of overtime to an
employee. We note that during the course of oral argument in the July 2015 proceedings Ai
Group submitted that such records are probably already being kept in practice46.
[54] Second, 33 of the 49 Existing TOIL provision do not specify a time period within
which TOIL is to be taken (see awards 1–32 and 49 in Attachment C). The remaining
16 existing provisions impose various restriction as to when TOIL must be taken:
(i) 1 award provides that TOIL must be taken ‘in the same roster cycle as the working
of the overtime’ (see clause 21.8 of the Aluminium Industry Award 2010, award 46
in Attachment C);
(ii) 1 award provides that TOIL must be taken by ‘the end of the month’ following
working of the overtime which is the subject of the TOIL agreement (see clause 19
of the Book Industry Award 2010, award 48 in Attachment C);
(iii) 8 of the existing provisions provide that TOIL must be taken within 4 weeks of
working the overtime which is the subject of the TOIL agreement (see awards 33–
40 in Attachment C);
(iv) 1 award provides that TOIL must be taken within 3 months of working the
overtime which is the subject of the TOIL agreement (see clause 25.1(c)(i) of the
Aged Care Award 2010, award 47 in Attachment C); and
(v) 5 existing provisions provide that TOIL must be taken within 12 months of
working the overtime which is the subject of the TOIL agreement (see awards 41–
45 in Attachment C).
[55] The model term provides that time off which an employee is entitled to take as part of
such an agreement must be taken:
(i) within the period of 6 months after overtime is worked; and
(ii) at a time or times within that period of 6 months agreed by the employee and
employer.
[56] The requirement that time off instead of payment for overtime be taken within 6
months after the overtime is worked is an important safeguard for employees. It ensures that
the time off is taken at a time reasonably proximate to when the employer received the benefit
of the overtime worked.
[57] The provisional model term set out in the July 2015 decision provided that time off
instead of payment for overtime had to be taken within 12 weeks of the overtime being
worked. In the September 2015 proceedings ABI submitted that the 12 week period was too
short, overly restrictive and potentially counterproductive47 and that ‘six months seems a
suitable period’.48 ABI advanced the following argument in support of the extension of the 12
week period:
[2016] FWCFB 4579
14
‘Placing a requirement on employees to take leave within 12 weeks after accrual unnecessarily
compromises the flexibility afforded by the Model Clause. ABI and NSWBC submit that an
extension of this period would not necessarily result in excessive leave balances or any lost or
untaken TOIL accruals given the protections afforded by the other components of the Model
Clause.
… the longer the available period in which to take TOIL, the less likely it is that parties will
reach the “deadline” date and be forced to cash out their TOIL accrual, thereby circumventing
the purpose of the TOIL clause.
… such an approach would be consistent with Modern Award Objective s 134(1)(d): the need
to promote flexible modern work practices and the efficient and productive performance of
work.’49
[58] The Full Bench agreed with the submission advanced by ABI, accepted that the
12 week period was too short and replaced it with a six month period50.
[59] It seems to us that the restrictions imposed in the 16 modern awards set out at
paragraph [54] above are inappropriate. The periods specified are either too short (i.e. (i)–
(iv)), and hence give rise to the consequences identified by ABI in its submission in the
October 2015 proceedings, or are too long (i.e. (v)) and do not offer sufficient protection to
employees.
[60] Third, the model term provides:
‘(f) If the employee requests at any time, to be paid for overtime covered by an agreement
[under the model term] 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.’
[61] Only 3 of the 49 existing TOIL provisions provide employees with an express right to
be paid for overtime which is the subject of a TOIL agreement but not taken as time off (see
awards 33, 34 and 35 in Attachment C). That right is expressed in the following terms:
‘if requested by an employee, an employer must, within one week of receiving a request, pay
the employee for any overtime worked. The employee must be paid at overtime rates.’
[62] The 17 modern awards in category (ii) provide that if TOIL is not taken within
4 weeks of accrual then ‘if requested by the employee’ payment is to be made for the
overtime worked.
[63] Clause (f) of the model term is an important safeguard for employees. As noted in the
July 2015 decision:
‘Subclause 1.2(e) is an important safeguard. It provides that if requested by the employee, the
employer must pay the employee for any accrued entitlement to take TOIL which the
employee has not yet used. Payment must be made at the overtime rate applying to the
overtime worked and must be made in the first pay period following the request for payment.
Under subclause 1.2(a)(ii), this requirement must be reflected in every written agreement to
take TOIL. As well as preserving an employee’s right to access their entitlement to be paid at
the appropriate overtime rate, subclause 1.2(e) will provide employers with an incentive to
agree to granting an employee’s request to take TOIL at a particular time.’51
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[64] Fourth, only 6 of the 49 existing provisions provide for untaken TOIL to be paid out
on the termination of the employee’s employment (see awards 36 and 41–45 in Attachment
C). The model terms provides:
‘(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.’
[65] A TOIL term should make provision for the payment of unused time off upon
termination of employment. The absence of such a provision may mean that an employee
foregoes their right to be paid for overtime worked.
[66] As mentioned earlier, Ai Group amended its claim to include such a provision and
submitted it was necessary to make provision for the payment of unused time off upon
termination of employment to ensure that the modern awards which were the subject of their
claim meet the modern awards objective. We see no good reason to distinguish the 49 awards
before us from that general observation.
[67] Fifth, only 1 of the 49 existing provisions states that ‘an employee cannot be
compelled to take time off instead of overtime (see clause 25.1(c)(iii) of the Aged Care Award
2010, award 47 of Attachment C).
[68] The model term states:
‘(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.’
[69] The model term also includes a ‘note’ in the following terms:
‘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
[this clause].’
[70] Paragraph (i) of the model term is consistent with the protection in s.344 of the FW
Act and for the reasons given in the October 2015 decision (at paragraphs [59]–[64]), is
necessary to ensure that employees are adequately protected.
[71] Finally, none of the existing provisions contain paragraph (j) of the model term, that
is:
(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).
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[72] Paragraph (j) was inserted into the model term in response to a submission advanced
by the CFMEU (C&G) to the effect that the model term was inconsistent with s.65 of the NES
because it requires the consent of the employer before an employee can access TOIL. In the
July 2015 decision the Full Bench said:
‘[109] It seems that an award TOIL clause could only potentially exclude some or all of s.65 if:
the clause applies in circumstances where s.65 also applies (that is; where an employee is
in one of the personal circumstances specified in s.65(1A) and wishes to take TOIL
because of those personal circumstances, is not excluded by s.65(2), and makes the request
in writing setting out the details required by s.65(3)); and
the clause would enable a request for TOIL in those circumstances to be refused by the
employer without the employer having reasonable business grounds for the refusal
[110] We do not consider that an award TOIL clause could lawfully operate in this way, to
circumvent the protections in s.65 of the FW Act:
If a request for TOIL was made in accordance with s.65 then an employer could not assert
that the provision for employer consent in the TOIL clause itself allowed it freedom to
decline the request as it saw fit, as this would in effect exclude s.65(5). Therefore, to this
extent, the TOIL clause would be of no effect pursuant to s.56.
If a request for TOIL was made in circumstances where s.65 applies but was not made in
accordance with that section, then a request for TOIL could always subsequently be made
in accordance with s.65, even if it had previously been refused under the terms of the TOIL
clause.
[111] However, out of an abundance of caution it is considered desirable to make the
relationship between an award TOIL clause and s.65 of the FW Act clear on the face of the
model TOIL term. This will avoid any uncertainty about an employer’s obligations where a
request for TOIL is made in circumstances where s.65 also applies. We return to this issue
later in our decision.
…
[277] Subclause 1.3 addresses any potential inconsistency between the NES (in particular
s.65) and the model term. Pursuant to ss.55(1) and 56 of the FW Act, the model term would be
of no effect to the extent that it excluded any provision of the NES (see paragraphs [97]–[111]
above).’52
[73] In the October 2015 decision the Full Bench rejected a submission by the National
Farmers’ Federation (NFF) to delete this part of the model term53. Clause A.1(j) of the model
term was varied in the 8 July 2016 decision, in response to a submission by the NFF.
[74] We now turn to consider whether the 49 modern awards presently before us should be
varied to insert the April 2016 model TOIL term. It is convenient to deal with the awards in
the categories set out at paragraph [43] above.
Category (i):awards 1–15 in Attachment C and Category (ii):awards 16–32 in Attachment C
[75] The TOIL provisions in the 15 modern awards in Category (i) are in substantially the
same terms and provide as follows:
[2016] FWCFB 4579
17
‘(a) An employee may elect, with the consent of the employer, to take time off instead of
payment for overtime at a time or times agreed with the employer.
(b) The employee may take one hour of time off for each hour of overtime, paid at the
employee’s ordinary hourly base rate of pay.’
[76] In our view the TOIL provisions in these 15 modern awards do not provide a fair and
relevant safety net. These TOIL provisions are deficient in the following respects:
(i) they do not require TOIL agreement to be in writing and nor do they require
employers to retain a record of TOIL agreements;
(ii) they do not specify a time period within which TOIL is to be taken;
(iii) they do not provide employees with an express right – exercisable at any time – to
be paid for overtime which is the subject of a TOIL agreement but is not taken as
time off;
(iv) they make no provision for the payment of unused TOIL upon termination of
employment;
(v) they do not provide that an employer must not exert undue influence or undue
pressure on an employee to make, or not make, a TOIL agreement; and
(vi) they contain no reference to s.65 of the FW Act.
[77] We have concluded that the TOIL provisions in these 15 modern awards do not
provide a fair and relevant safety net.
[78] The TOIL provisions in the 17 modern awards in Category (ii) are in substantially the
same terms as clause 30.5 of the Waste Management Award 2010:
‘(a) An employee may elect, with the consent of the employer, to take time off at a time or
times agreed with the employer instead of payment for overtime.
(b) Overtime taken as time off during ordinary time hours is to be taken at the ordinary
time rate, that is an hour for each hour worked.
(c) If requested by an employee, the employer must pay the employee for the overtime at
the overtime rate where the time off has not been taken with four weeks.’
[79] We note that the TOIL terms in these modern awards differ from those in Category (i)
in that they provide that if TOIL is not taken within four weeks then the employee has a right
to be paid for the overtime worked, upon request. But we see no good reason why an
employee’s right to be paid for overtime worked should be contingent on the passage of time
– in this instance four weeks. The employee has worked the overtime and the employer has
received the benefit of that work. An employee should have a right to be paid for overtime
covered by a TOIL agreement, but not taken as time off. The employee should be able to
exercise their right to payment, at any time.
[80] Subject to the exceptions noted below, these TOIL provisions have the same
deficiencies as are identified in respect of the provision in the 15 modern awards in Category
(i). The exceptions are awards 28, 29 and 30 in Attachment C which require TOIL
arrangements to be recorded in ‘the time and wages records’.
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[81] Two of the modern awards (clause 23.4 of the Amusement, Events and Recreation
Awards 2010 – award 29 of Attachment C and clause 24.11 of the Mobile Crane Hiring
Award 2010 – award 17 of Attachment C) require that there be agreement by a majority of
employees at an enterprise54 or workplace55 before individual employees can enter into TOIL
agreements with their employer.
[82] The requirement that there be agreement by a majority of employees prior to the
introduction of individual access to TOIL was part of the Family Leave Test Case standard.
However, as we have mentioned, in the July 2015 decision the Full Bench was not persuaded
that this safeguard was necessary to achieve the modern awards objective, noting that:
‘The nature of the flexibility which is the subject of a TOIL provision only affects the
employer and the individual employee concerned and the utilisation of the provision will
depend on individual preference.’56
[83] At the hearing on 10 December 2015 the CFMEU (C&G) supported the retention of
the existing TOIL provision in the Mobile Crane Hiring Award 2010,57 but in the alternative
submitted that if the majority provision was to be deleted, then it would support the insertion
of the model TOIL term.58 Ai Group sought a further opportunity to clarify its position in
respect of this provision and to consult with the Crane Industry Council of Australia.
[84] We express the provisional view that the requirement for majority approval in these
two modern awards is unnecessary and inappropriate. Further, our provisional view is that
these two existing provisions do not achieve the modern awards objective. We propose to list
these awards for further hearing on 24 August 2016, in Sydney.
[85] In relation to the Amusement, Events and Recreation Award 2010 we also note that the
existing TOIL provision is confined to ‘exhibition employees’. Such employees are defined in
clause 3.1 to mean ‘employees of employers engaged in the supply, preparation, marking out,
fabrication, installation, erection or dismantling of exhibition stands or associated
componentry for the trades and public promotions industry’. The coverage of the modern
award plainly extends beyond ‘exhibition employees’ and it is not clear to us why the TOIL
provision should not extend to all employees covered by the modern award. This issue can
also be the subject of submissions at the hearing on 24 August 2016.
[86] In relation to the TOIL provisions in the other 15 modern awards in category (ii), we
are satisfied that these provisions do not provide a fair and relevant safety net.
[87] On the basis of the matters set out above we have concluded that the TOIL terms in 30
of the 32 modern awards do not provide a fair and relevant minimum safety net of terms and
conditions of employment. On that basis the terms do not meet the modern awards objective.
In respect of awards 17 and 29 we have reached a provisional view that these awards do not
achieve the modern awards objective and they will be the subject of a further hearing at
9.30 am on 24 August 2016.
Categories (iii), (iv), (v) and (vi)
[88] Each of the modern awards in these categories specifies a timeframe within which
TOIL must be taken, though the period specified varies:
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The Aluminium Industry Award 2010 (award 46 in Attachment C) provides that
TOIL must be taken ‘in the same roster cycle as the working of the overtime’;
8 of the provisions require TOIL to be taken within 4 weeks of accrual (see awards
33–40 in Attachment C)
the Aged Care Award 2010 (award 47 in Attachment C) provides that TOIL must be
taken within 3 months of accrual; and
5 of the provisions require TOIL to be taken within 12 months of accrual (see awards
41–45 in Attachment C).
[89] For the reasons set out earlier (see paragraphs [55]–[59]) the timeframe restrictions
imposed in each of these modern awards are inappropriate – the periods specified are either
too short or too long.
[90] Subject to the exceptions noted below, these 15 modern awards also suffer from the
deficiencies identified in paragraph [76](i)–(vi). The exceptions are:
awards 33, 34 and 35 in Attachment C require TOIL agreements to be ‘in writing’
and provide employees with an express right to be paid for overtime which is the
subject of a TOIL agreement but is not taken as time off.
award 36 in Attachment C makes provision for the payment of unused TOIL
termination of employment.
award 37 in Attachment C provides that TOIL agreements ‘will be in writing and be
kept with the time and wages records’.
award 45 in Attachment C provides that the ‘employer must keep accurate records of
time accrued as time off instead of payment for overtime’.
award 47 in Attachment C provides that an employee ‘cannot be compelled to take
time off instead of overtime’.
[91] Two of the modern awards in these categories (the Supported Employment Services
Award 2010 and the Children’s Services Award 2010, awards 37 and 40 in Attachment C)
contain additional limitations in relation to TOIL and are considered separately at paragraphs
[112] to [121] of this decision.
[92] On the basis of the matters set out above we have concluded that the remaining 13
modern awards do not provide a fair and relevant minimum safety net of terms and conditions
of employment. On that basis the terms do not meet the modern awards objective.
Category (vii): Awards 48–49 in Attachment C
[93] The TOIL provision in the Book Industry Award 2010 is unique in three respects.
[94] First, it provides that an employee is ‘entitled to time off for a period equivalent to the
overtime worked to be taken at a time mutually agreed’. In other words an employee’s
capacity to access TOIL is not contingent on employer agreement, though the employer
would have to agree to when the TOIL is to be taken.
[2016] FWCFB 4579
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[95] Second, it requires accrued TOIL to be taken ‘by the end of the month following’ the
working of the overtime.
[96] Third, the clause conflates the prescription of the overtime rate and the provision of
TOIL. In our view the award would be simpler and easier to understand if these two matters
were dealt with in separate clauses. We also note that the overtime rate is itself unusual –
‘time and a half for the first eight overtime hours in any week and at the rate of double time
for all overtime hours in excess of eight hours in any week’.
[97] We note that the TOIL provision in the Book Industry Award 2010 differs from the
model term in a number of respects, including:
(i) it does not require a TOIL election by an employee to be in writing and nor does it
require that employers retain a record of such elections;
(ii) it does not provide employees with an express right – exercisable at any time – to
be paid for overtime which is the subject of a TOIL election but is not taken as
time off;
(iii) it makes no provision for the payment of unused TOIL upon termination of
employment;
(iv) it does not provide that an employer must not exert undue influence or undue
pressure on an employee to make, or not make, a TOIL agreement; and
(v) it contains no reference to s.65 of the FW Act.
[98] Given the matters set out at (i)–(v) above our provisional view is that the TOIL term in
this award does not provide a fair and relevant safety net and on that basis does not achieve
the modern awards objective. We have reached a provisional view only at this stage because,
given the unusual nature of the existing clause, we wish to hear further submissions from
interested parties. We will publish a draft variation determination and list the matter for
further hearing on 24 August 2016.
[99] The TOIL provision in the Electrical Power Industry Award 2010 is set out at
paragraph [43](vii) above. In addition the deficiencies identified at paragraph [76], (i)–(vi),
the TOIL provision in this modern award is unnecessarily restrictive. The provision appears to
limit access to TOIL to circumstances where an employee has either worked ‘at least a full
day of overtime … on a Saturday or Sunday’ or ‘at least a full shift of overtime is worked on
a rostered day off … or where a shiftworker works a double shift …’. Such limitations are
unnecessary and inappropriate in the context of a facilitative provision which is dependent
upon the agreement of the employee and employer. In our view the limitations in this TOIL
provision are inconsistent with ‘the need to promote flexible modern work practice’.
[100] On the basis of the matters set out above we have concluded that the TOIL term in the
Electrical Power Industry Award 2010 does not provide a fair and relevant safety net of terms
and conditions. On that basis the term does not meet the modern awards objective.
4. Conclusion
[101] We propose to vary the 44 modern awards set out at Attachment D to insert the model
term and the associated schedule containing the template agreement. Draft determinations will
[2016] FWCFB 4579
21
be published shortly. Parties will have seven days to comment on the form of the
determinations but this should not be viewed as an opportunity to re-agitate issues already
determined by this decision.
[102] We have concluded that the existing TOIL terms in these 44 modern awards should be
deleted and that these modern awards should be varied to insert the model term. We rely on
the findings set out in the June 2015 decision59 and the reasons provided above (see
particularly paragraphs [76]–[81], [87]–[92] and [99]–[100]).
[103] We are satisfied that the variation of these 44 modern awards to incorporate the model
term is necessary to ensure that each of these modern awards provides a fair and relevant
minimum safety net, taking into account the s.134 considerations (insofar as they are
relevant). We are also satisfied that such variations would be consistent with the objects of the
FW Act.
[104] The variation of these 44 modern awards in the manner proposed will ensure that the
time off instead of overtime provisions in these awards provide a fair and relevant safety net.
The variations are necessary to ensure that these modern awards achieve the modern awards
objective.
[105] The April 2016 decision provided for the variation of 26 modern awards to insert the
model term and the associated schedule containing the template agreement. As a consequence
of the decision in the present matter a further 44 modern awards will contain the model term
and associated schedule. In sum, 70 of the 122 modern awards will now contain the model
term and associated schedule.
[106] Both ABI and Ai Group acknowledge that the adoption of standard model terms
across all modern awards facilitates a modern award system that is simple and easy to
understand. In its submission of 2 December 2015 ABI submitted:
‘ABI/NSWBC acknowledge that the adoption of standard model terms across all modern
awards is likely to have a bearing on s.134(1)(g) of the Fair Work Act 2009 in facilitating a
simple and easy to understand modern award system…
The simplification of the modern award system through the use of standard or ‘model’ terms
would likely be most apparent for businesses who engage employees under multiple awards.’60
[107] In the July 2015 proceedings Ai Group submitted that providing greater consistency in
respect of the TOIL provisions in modern awards would further the objective of making the
award system simpler and easier to understand. In the July 2015 decision the Full Bench
accepted that submission, noting that:
‘Greater consistency in the provisions governing TOIL will make the modern award safety net
simpler and easier to understand.’61
[108] We acknowledge that simplicity is not the only relevant consideration and we accept
that these variations will, to some extent, increase the regulatory burden on business. In
particular, agreements to take time off instead of payment for overtime will have to be in
writing and be retained as employee records. However, as we have mentioned, fairness
requires that such safeguards be included in these TOIL provisions.
[2016] FWCFB 4579
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[109] We now turn to the other five modern awards which are the subject of this decision.
[110] In respect of the Mobile Crane Hiring Award 2010 and the Amusement, Events and
Recreation Award 2010 we have expressed the provisional view that the requirement for
majority approval in these two modern awards is not consistent with the nature of the
facilitation provided. Further, our provisional view is that these two existing provisions do not
achieve the modern awards objective. These awards will be listed for further hearing at
9.30 am on 24 August 2016.
[111] In relation to the Book Industry Award 2010 our provisional view is that the TOIL
term in this award does not provide a fair and relevant safety net and on that basis does not
achieve the modern awards objective. We will publish a draft variation determination in
respect of this award and list the matter for further hearing on 24 August 2016.
[112] The remaining two modern awards provide a limitation on the amount of overtime that
can be the subject of a TOIL agreement. Clause 21.7(b) of the Supported Employment
Services Award 2010 (award 37 in Attachment C) provides:
‘(b) An employee may not accumulate more than 20 hours to be taken as leave instead of
overtime payment and leave will be taken within four weeks of accrual. Where such leave is
not taken in this period it will be paid for at the appropriate overtime rate.’
[113] Further clause 21.7(c) provides that TOIL is only available ‘in respect of overtime
worked between Monday to Friday inclusive’.
[114] The Children’s Services Award 2010 (award 40 in Attachment C) contains a provision
in similar terms – at clause 23.2(c)(ii) – but also provides – at clause 23.2(c)(iii) – as follows:
‘(iii) notwithstanding clause 23.2(c)(ii), by agreement between the employee and the employer,
time off instead of payment for overtime may be accrued and taken as part of annual leave.’
[115] These provisions, i.e. clauses 21.7(b) and (c) of the Supported Employment Services
Award 2010 and 23.2(c)(ii) of the Children’s Services Award 2010, operate to restrict the
capacity of an employee and employer to enter into an agreement by capping the amount of
overtime that can be subject to such agreements at any one time (and not taken as time off) to
20 hours or by limiting the overtime that can be converted to time off to overtime worked
between Monday to Friday. We presume that the intent of such a limitation is to provide some
additional protection to employees. Our provisional view is that if the existing provisions
were replaced by the model term then such a limitation may be unnecessary.
[116] This is so because of the safeguards built into the model term, in particular:
an agreement must be in writing and be retained as an employee record;
time off instead of payment for overtime must be taken within 6 months of the
overtime being worked, at a time or times agreed by the employee and employer;
employees have an express right to be paid for overtime which is the subject of
an agreement under the model term but is not taken as time off;
unused time off is paid out on termination of employment; and
[2016] FWCFB 4579
23
there is an express term providing that an employer must not exert undue
influence or undue pressure on an employee to make, or not make an agreement
to take time off instead of payment for overtime.
[117] In addition, the protection afforded by the 20 hour cap is of limited utility in the
Children’s Services Award 2010 as it may be abrogated by agreement between the employee
and employer.
[118] Further, clause 21.7(c) of the Supported Employment Services Award 2010 provides:
‘(c) This provision will only apply in respect of overtime worked between Monday to Friday
inclusive. Normal penalties for overtime worked on Saturday, Sunday and public holidays will
apply for those days.’
[119] Our provisional view is that capacity to enter into an agreement for time off instead of
payment for overtime should not be restricted in the manner prescribed by clause 21.7(c).
[120] As these issues have not been the subject of any argument to date we propose to adopt
the provisional view that these two modern awards should be varied to delete the existing
TOIL provisions and to insert the model term and the associated schedule. Interested parties
will have 14 days to comment on the draft variation determinations. If there is no opposition
to the draft variation determinations we will make variation determinations in those terms. In
the event that the draft variation determinations are opposed, the matter will be listed for
further hearing on 24 August 2016.
[121] Directions for the further hearing of this matter will be listed in due course.
PRESIDENT
Printed by authority of the Commonwealth Government Printer
Price code C, PR582567
[2016] FWCFB 4579
24
Appearances:
L Cottam for The Australian Workers’ Union
S Maxwell for the Construction, Forestry, Mining and Energy Union—Construction and
General Division
B Ferguson for the Australian Industry Group
J Arndt for Australian Business Industrial and the New South Wales Chamber
D Hamilton for the Australian Entertainment Industry Association
V Wiles for the Textile, Clothing and Footwear Union of Australia
A Moussa for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU)—Vehicle division
M Nguyen for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU)
G Jolly for News Limited and other publishers
Hearing details:
2015.
Sydney, Melbourne, Canberra (video hearing).
December 10.
Final written submissions:
23 March 2016.
[2016] FWCFB 4579
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Attachment A—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]. 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 this clause an 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 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 4579
26
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 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 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.
[2016] FWCFB 4579
27
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 pay period immediately following the
request.
Signature of employee: ________________________________________
Date signed: ___/___/20___
Name of employer
representative: ________________________________________
Signature of employer
representative: ________________________________________
Date signed: ___/___/20___
[2016] FWCFB 4579
28
Attachment B—List of submissions
Note this list contains only submissions made in accordance with the Directions issued on
6 October 2015.
Organisation Document Date
Australian Entertainment Industry
Association
Submission—Live Performance Award 2010 9/11/15
Australian Municipal,
Administrative, Clerical and
Services Union
Submission—Social, Community, Home Care
and Disability Services Industry Award 2010
9/11/15
Australian Mines and Metals
Association Inc and Maritime
Industry Association Limited
Submission—Multiple maritime industry
awards
9/11/15
Australian Mines and Metals
Association Inc
Submission—Multiple resource industry
awards
9/11/15
Australian Industry Group Submission—general submission—multiple
awards
9/11/15
National Farmers’ Federation Submission—Multiple awards 9/11/15
Australian Salaried Medical
Officers’ Federation
Submission—Medical Practitioners’ Award
2010
10/11/15
Health Services Union of
Australia
Submission—Medical Practitioners’ Award
2010
11/11/15
Group of Eight Universities Submission—Higher Education—General
Staff—Award 2010
12/11/15
National Tertiary Education
Union
Submission in reply—Higher Education—
General Staff—Award 2010
30/11/15
Australian Workers’ Union Submission in reply—Agriculture group 30/11/15
Australian Manufacturing
Workers Union – Vehicle division
Submission in reply—General submission and
multiple awards
30/11/15
Australian Manufacturing
Workers Union
Submission in reply—General submission and
multiple awards
30/11/15
Textile, Clothing and Footwear
Union of Australia
Submission in reply—General submission and
multiple awards
30/11/15
Australian Business Industrial and
NSW Business Chamber
Submission in reply—General submission and
multiple awards
2/12/15
News Limited and others Submission – Journalists Published Media
Award 2010
4/12/15
Australian Municipal,
Administrative, Clerical and
Services Union
Submission – Social, Community, Home Care
and Disability Services Industry Award 2010
23/12/15
Australian Business Industrial and
NSW Business Chamber
Submission – Social, Community, Home Care
and Disability Services Industry Award 2010
19/01/16
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-ABIandanor-190116.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014305-sub-ASU-231215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-NewsLtdandOrs-041215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-abiandanor-021215.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-TCFUA-301115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AMWU-301115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AMWU-Vehicle-301115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AWU-301115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-nteu-301115.pdf
https://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014300-sub-eightunis-121115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-HSU-11115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-ASMOF-10115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014300-sub-NFF-091115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AIG-091115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AMMA-091115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014300-sub-AMMAandors-091115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM2014300-sub-ASU-091115.pdf
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/common/AM2014300-sub-AEIA-091115.pdf
[2016] FWCFB 4579
29
Attachment C—The existing TOIL provisions in 49 modern awards
CATEGORY (i): Awards that do not specify a timeframe in which accrued TOIL must be taken
1. MA000015 Rail Industry Award 2010 23.3 Time off instead of overtime payment
(a) An employee may elect, with the consent of
the employer, to take time off instead of payment
for overtime at a time or times agreed with the
employer.
(b) The employee may take one hour of time off
for each hour of overtime, paid at the employee’s
ordinary hourly base rate of pay.
2. MA000019 Banking, Finance and
Insurance Award 2010
23.4 An employee may elect, with the consent of an
employer, to take time off instead of payment for
overtime at a time or times agreed with an employer.
23.5 Overtime taken as time off during ordinary time
hours will be taken at the ordinary time rate, that is
an hour for each hour worked.
3. MA000027 Health Professionals and
Support Services Award
2010
28.3 Time off instead of payment for overtime
(a) An employee may elect, with the consent of
the employer, to take time off instead of payment
for overtime at a time agreed with the employer.
(b) Overtime taken as time off during ordinary
hours will be taken at the ordinary time rate, that
is, an hour for each hour worked.
4. MA000044 Wool Storage, Sampling and
Testing Award 2010
25.5 Time off instead of payment for overtime
(a) An employee may elect, with the consent of
the employer, to take time off instead of payment
for overtime at a time or times agreed with the
employer.
(b) The employee may take one hour of time off
for each hour of overtime worked, paid at the
employee’s ordinary hourly base rate of pay.
5. MA000051 Port Authorities Award 2010 21.3 Time off instead of overtime payment
(a) An employee may elect, with the consent of
the employer, to take time off instead of payment
for overtime at a time or times agreed with the
employer.
(b) The employee may take one hour of time off
for each hour of overtime, paid at the employee’s
ordinary hourly minimum rate of pay.
6. MA000061 Gas Industry Award 2010 23.2 Time off instead of overtime payment
By agreement between the employer and an
employee, time off, on an hour of actual work for
an hour of time off basis, may be granted instead
of payment. The right to choose to accept time
off instead of payment for overtime is at the
option of the employee.
http://www.fwc.gov.au/documents/modern_awards/award/MA000061/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000051/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000044/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000027/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000019/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000015/default.htm
[2016] FWCFB 4579
30
CATEGORY (i): Awards that do not specify a timeframe in which accrued TOIL must be taken
7. MA000063 Passenger Vehicle
Transportation Award 2010
23.3 An employee may elect, with the consent of the
employer, to take time off instead of payment for
overtime at a time or times agreed with the
employer and such time off will be taken on the
basis of an hour for each hour worked.
8. MA000070 Cemetery Industry Award
2010
23.2 Time off instead of overtime provided in clause
23.1 may be taken by mutual agreement between
the employer and employee. Time off instead of
overtime is to be taken at the ordinary time rate
of an hour for each hour worked.
9. MA000075 Educational Services (Post-
Secondary Education)
Award 2010
24.3 Time off instead of overtime payment—
general staff classified at Level 7 or below
(a) Where an employee and the employer agree
the employee may be compensated for the hours
worked in excess of their ordinary stipulated
hours on the basis of one hour for each hour
worked.
…
24.4 Overtime—teaching staff and general staff
classified at Level 8 or 9
(a) An employee who is not working annualised
hours and who works overtime will be entitled to
time off instead of overtime payment on the basis
of one hour for each hour worked.
10. MA000083 Commercial Sales Award
2010
23.4 Time off instead
Where agreement is reached between the
employer and the employee, the employer may
grant time off instead of the payments prescribed
above on the basis of one hour off for each hour
worked.
11. MA000084 Storage Services and
Wholesale Award 2010
24.3 Time off instead of payment for overtime
(a) An employee may elect, with the consent of
the employer, to take time off instead of payment
for overtime at a time or times agreed with the
employer.
(b) Overtime taken as time off during ordinary
working hours will be taken at the ordinary time
rate; that is, one hour for each hour worked.
12. MA000111 Fire Fighting Industry
Award 2010
26.2 Overtime—private sector
(c) An employee may elect to be given time off
instead of payment for overtime. Time off instead
of payment for overtime is calculated on the basis
of one hour off for each hour of overtime
worked.
http://www.fwc.gov.au/documents/modern_awards/award/MA000111/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000084/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000083/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000075/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000070/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000063/default.htm
[2016] FWCFB 4579
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CATEGORY (i): Awards that do not specify a timeframe in which accrued TOIL must be taken
13. MA000115 Aboriginal Community
Controlled Health Services
Award 2010
24.6 Time off instead of payment for overtime
(a) An employee may elect, with the consent of
the employer, to take time off instead of payment
for overtime at a time agreed with the employer.
(b) Overtime taken as time off during ordinary
hours will be taken at the ordinary time rate, that
is, an hour for each hour worked.
14. MA000121 State Government Agencies
Award 2010
23.4 The employer may, on the application of an
employee, grant time off (on an hour for hour basis)
in respect of overtime performed by that employee.
No time off will be granted in respect of any work
for which payment has been made.
15. MA000066 Surveying Award 2010 23.1 An employer must compensate an employee for
all authorised time worked in excess of normal
hours of duty by:
...
(b) provided that where the employer and
employee agree, time off with pay may be taken
instead of payment for overtime work or work on
Sunday and holidays, on an hour for hour basis;
...
CATEGORY (ii): Awards that do not specify a time during which accrued TOIL must be taken but
require the employer, if requested by the employee, to provide payment at overtime rates where the
TOIL is not taken within four weeks of accrual
16. MA000010 Manufacturing and
Associated Industries
and Occupations
Award 2010
40.1 Payment for working overtime
...
(d) An employee may elect, with the consent of the
employer, to take time off instead of payment for overtime
at a time or times agreed with the employer, provided that:
(i) overtime taken as time off during ordinary hours
must be taken at the ordinary time rate, that is an hour
for each hour worked; and
(ii) an employer must, if requested by an employee,
provide payment, at the rate provided for the payment
of overtime in this award, for any overtime worked
which has not been taken as time off instead of
payment for overtime within four weeks of accrual.
17. MA000032 Mobile Crane Hiring
Award 2010
24.11 Time off instead of payment for overtime
(a) Subject to a majority of employees at a workplace
agreeing to introduce this provision an employee may
elect, with the consent of the employer, to take time off
instead of payment for overtime at a time or times agreed
with the employer.
(b) Overtime taken as time off during ordinary time hours
will be taken at the ordinary time rate, that is, an hour for
each hour worked.
(c) An employer will, if requested by an employee,
provide payment, at the rate provided for the payment of
http://www.fwc.gov.au/documents/modern_awards/award/MA000032/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000010/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000066/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000121/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000115/default.htm
[2016] FWCFB 4579
32
CATEGORY (ii): Awards that do not specify a time during which accrued TOIL must be taken but
require the employer, if requested by the employee, to provide payment at overtime rates where the
TOIL is not taken within four weeks of accrual
overtime in this award, for any overtime worked under
clause 24.11(a) where such time has not been taken within
four weeks of accrual.
18. MA000042 Transport (Cash in
Transit) Award 2010
28.2 Time off instead of payment for overtime
(a) An employee may elect, with the consent of the
employer, to take time off instead of payment for overtime
at a time or times agreed with the employer. Overtime
taken as time off during ordinary time hours will be taken
at the ordinary time rate, that is an hour for each hour
worked.
(b) If requested by an employee, an employer will provide
payment for overtime at the overtime rate for any overtime
worked under clause 28.2(a) where time off has not been
taken within four weeks of accrual.
19. MA000043 Waste Management
Award 2010
30.5 Time off instead of payment for overtime
(a) An employee may elect, with the consent of the
employer, to take time off at a time or times agreed with
the employer instead of payment for overtime.
(b) Overtime taken as time off during ordinary time hours
is to be taken at the ordinary time rate, that is an hour for
each hour worked.
(c) If requested by an employee, the employer must pay
the employee for the overtime at the overtime rate where
the time off has not been taken within four weeks.
20. MA000048 Airline Operations—
Ground Staff Award
2010
32.1 Payment for working overtime
(d) An employee may elect, with the consent of the
employer, to take time off instead of payment for overtime
at a time or times agreed with the employer, provided that:
(i) overtime taken as time off during ordinary hours
must be taken at the ordinary time rate, that is an hour
for each hour worked; and
(ii) an employer must, if requested by an employee,
provide payment, at the rate provided for the payment
of overtime in this award, for any overtime worked
which has not been taken as time off instead of
payment for overtime within four weeks of accrual.
21. MA000068 Seafood Processing
Award 2010
26.1 Payment for working overtime
(d) An employee may elect, with the consent of the
employer, to take time off instead of payment for overtime
at a time or times agreed with the employer, provided that:
(i) overtime taken as time off during ordinary hours
must be taken at the ordinary time rate, that is an hour
for each hour worked; and
(ii) an employer must, if requested by an employee,
provide payment, at the rate provided for the payment
of overtime in this award, for any overtime worked
which has not been taken as time off instead of
payment for overtime within four weeks of accrual.
http://www.fwc.gov.au/documents/modern_awards/award/MA000068/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000048/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000043/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000042/default.htm
[2016] FWCFB 4579
33
CATEGORY (ii): Awards that do not specify a time during which accrued TOIL must be taken but
require the employer, if requested by the employee, to provide payment at overtime rates where the
TOIL is not taken within four weeks of accrual
22. MA000073 Food, Beverage and
Tobacco
Manufacturing Award
2010
33.1 Payment for working overtime
...
(d) An employee may elect, with the consent of the
employer, to take time off instead of payment for overtime
at a time or times agreed with the employer, provided that:
(i) overtime taken as time off during ordinary hours
must be taken at the ordinary time rate, that is an hour
for each hour worked; and
(ii) an employer must, if requested by an employee,
provide payment, at the rate provided for the payment
of overtime in this award, for any overtime worked
which has not been taken as time off instead of
payment for overtime within four weeks of accrual.
23. MA000087 Sugar Industry Award
2010
31.6 Time off instead of payment for overtime
(a) An employee may elect, with the consent of the
employer, to take time off instead of payment for overtime
that would otherwise be payable under this clause at a time
or times agreed with the employer.
(b) Overtime taken as time off during ordinary hours must
be taken at the ordinary time rate; that is an hour for each
hour worked.
(c) An employer must, if requested by an employee,
provide payment, at the rate provided for the payment of
overtime in the award, for any overtime worked under this
clause where such time has not been taken within four
weeks of accrual.
24. MA000090 Wine Industry Award
2010
30.6 Time off instead of payment for overtime
An employee may elect, with the consent of the employer,
to take time off instead of payment for overtime at a time
or times agreed with the employer, provided that:
(a) overtime taken as time off during ordinary hours must
be taken at the ordinary time rate, that is an hour for each
hour worked; and
(b) an employer must, if requested by an employee,
provide payment at the rate provided for the payment of
overtime in this award, for any overtime worked which
has not been taken as time off instead of payment for
overtime within four weeks of accrual.
25. MA000105 Funeral Industry
Award 2010
24.5 Time off instead of payment for overtime
(a) An employee may elect with the consent of their
employer to take time off instead of payment for overtime
at a time or times agreed with the employer.
(b) Overtime taken as time off during ordinary time hours
will be taken at the ordinary time rate: that is, an hour for
each hour worked.
(c) An employer will provide payment at the rate
provided for the payment of overtime for any overtime
worked where the time has not been taken within four
weeks of accrual and requested by the employee.
http://www.fwc.gov.au/documents/modern_awards/award/MA000105/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000090/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000087/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000073/default.htm
[2016] FWCFB 4579
34
CATEGORY (ii): Awards that do not specify a time during which accrued TOIL must be taken but
require the employer, if requested by the employee, to provide payment at overtime rates where the
TOIL is not taken within four weeks of accrual
26. MA000106 Real Estate Industry
Award 2010
24.2 Time off instead of payment for overtime
(a) The employee may elect, with the consent of the
employer, to take time off instead of payment for overtime
that would otherwise be payable under clause 24.1, at a
time or times agreed with the employer.
(b) Overtime taken as time off during ordinary time hours
must be taken at the ordinary time rate; that is, an hour for
each hour worked.
(c) Where time off instead of payment for overtime has not
been taken within four weeks of accrual the employer must,
if requested by the employee, pay the employee for any
overtime worked, at the rate provided for the payment of
overtime in clause 24.1.
27. MA000118 Animal Care and
Veterinary Services
Award 2010
24.4 Time off instead of payment for overtime
(a) An employee may elect, with the consent of the
employer, to take time off instead of payment for overtime
that would otherwise be payable under this clause, at a
time or times agreed with the employer.
(b) Overtime taken as time off instead of payment for
overtime during ordinary time hours must be taken at the
ordinary time rate, that is, an hour for each hour worked.
(c) An employer must, if requested by an employee,
provide payment at the rate provided for the payment of
overtime in the award, for any overtime worked under this
clause where such time has not been taken within four
weeks of accrual.
28. MA000030 Market and Social
Research Award 2010
22.2 Time off instead of payment for overtime
(a) Where agreement is reached between the employer and
the regular employee, the employer may grant time off
instead of the payment prescribed in this clause.
(b) Overtime taken as time off during ordinary time hours
will be taken at the ordinary time rate, that is one hour for
each hour worked.
(c) An employer will, if requested by an employee,
provide payment, at the rate provided for the payment of
overtime in the award, for any overtime worked where
such time has not been taken within four weeks of accrual.
(d) On each occasion that the employee elects to use this
provision the resulting agreement will be recorded in the
time and wages records, personnel file or forms
appropriate to the enterprise, at the time when the
agreement is made.
29. MA000080 Amusement, Events and
Recreation Award 2010
23.4 Special provisions for exhibition employees
...
(d) Time off instead of payment for overtime
The employer and the majority of employees at an
enterprise may agree to establish a system of time off
instead of payment for overtime provided that:
http://www.fwc.gov.au/documents/modern_awards/award/MA000080/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000030/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000118/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000106/default.htm
[2016] FWCFB 4579
35
CATEGORY (ii): Awards that do not specify a time during which accrued TOIL must be taken but
require the employer, if requested by the employee, to provide payment at overtime rates where the
TOIL is not taken within four weeks of accrual
(i) an employee may elect, with the consent of the
employer, to take time off instead of payment for
overtime at a time or times agreed with the employer;
(ii) overtime taken as time off during ordinary time
hours will be taken at the ordinary time rate of an hour
for each hour worked;
(iii) an employer will, if requested by an employee,
provide payment at the rate provided for the payment
of overtime as prescribed in clauses 23.4(a), (b) and (c)
for any overtime worked under this subclause where
such time has not been taken within four weeks of
accrual; and
(iv) an employer will record time off instead of
overtime arrangements in the time and wages book
each time this provision is used.
30. MA000094 Fitness Industry Award
2010
26.4 Time off instead of payment for overtime
An employee may elect, with the consent of the employer,
to take time off instead of payment for overtime at a time
or times agreed with the employer, provided that:
(a) overtime taken as time off instead of payment for
overtime during ordinary hours must be taken at the
ordinary time rate, that is an hour for each hour worked;
and
(b) an employer must, if requested by an employee,
provide payment at the rate provided for the payment of
overtime in this award for any overtime worked which
has not been taken as time off instead of payment for
overtime within four weeks of accrual; and
(c) an employer sets out in the time and wages record
time off instead of payment for overtime arrangements.
31. MA000076 Educational Services
(Schools) General Staff
Award 2010
27.2 Time off instead of overtime payment
(a) An employee and an employer may agree that an
employee will be provided with time off instead of being
paid an overtime payment for all authorised work
performed outside of or in excess of the ordinary or
rostered hours.
(b) Overtime taken as time off during ordinary time hours
must be taken at the ordinary time rate, that is, an hour for
each hour worked.
(c) Where an employee and an employer have agreed to
time off instead of overtime payment under clause 27.2(a)
and such time has not been taken:
(i) within four weeks of accrual; or
(ii) during the non-term weeks agreed in writing
between an employee and an employer;
an employer must, if requested by an employee, provide
payment, at the rate provided for the payment of overtime
in the award, for any overtime worked.
http://www.fwc.gov.au/documents/modern_awards/award/MA000076/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000094/default.htm
[2016] FWCFB 4579
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CATEGORY (ii): Awards that do not specify a time during which accrued TOIL must be taken but
require the employer, if requested by the employee, to provide payment at overtime rates where the
TOIL is not taken within four weeks of accrual
32. MA000077 Educational Services
(Teachers) Award 2010
B.4.2 Time off instead of overtime payment
(a) An employee and an employer may agree that an
employee will be provided with time off instead of being
paid an overtime payment for all authorised work
performed outside of or in excess of the ordinary or
rostered hours.
(b) Overtime taken as time off during ordinary time hours
must be taken at the ordinary time rate, that is, an hour for
each hour worked.
(c) Where an employee and an employer have agreed to
time off instead of payment for overtime under clause
B.4.2(a) and such time has not been taken:
(i) within four weeks of accrual; or
(ii) during the non-term weeks agreed in writing
between an employee and an employer,
an employer must, if requested by an employee, provide
payment, at the rate provided for the payment of overtime
in the award, for any overtime worked.
CATEGORY (iii): Awards that require accrued TOIL to be taken within four weeks
33. MA000023 Contract Call Centre
Award 2010
26.5 Time off instead of payment for overtime
(a) An employee may choose with the consent of the
employer to take time off instead of payment for
overtime at a time or times agreed by the employer.
This agreement must be in writing. The employee must
take the time off within four weeks of working the
overtime.
(b) If the employee takes time off instead of payment
for overtime then the amount of time off during
ordinary hours will be taken at the ordinary time rate,
that is an hour for each hour worked.
(c) If requested by an employee, an employer must
within one week of receiving a request pay the
employee for any overtime worked. The employee must
be paid at overtime rates.
34. MA000041 Telecommunications
Services Award 2010
21.5 Time off instead of payment for overtime
(a) An employee may choose, with the consent of the
employer, to take time off instead of payment for
overtime at a time or times agreed by the employer. This
agreement must be in writing. The employee must take
the time off within four weeks of working the overtime.
(b) If the employee takes time off instead of payment
for overtime then the amount of time off during ordinary
hours will be taken at the ordinary time rate, that is an
hour for each hour worked.
(c) If requested by an employee, an employer must,
within one week of receiving a request, pay the
employee for any overtime worked. The employee must
be paid at overtime rates.
http://www.fwc.gov.au/documents/modern_awards/award/MA000041/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000023/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000077/default.htm
[2016] FWCFB 4579
37
CATEGORY (iii): Awards that require accrued TOIL to be taken within four weeks
35. MA000026 Graphic Arts, Printing
and Publishing Award
2010
33.9 Time off instead of payment for overtime
(a) Notwithstanding clause 33.2 an employee may
choose, with the consent of the employer (level 1
facilitation), to take time off instead of payment for
overtime at a time or times agreed by the employer. This
agreement must be in writing. The employee must take
the time off within four weeks of working the overtime.
(b) If an employee takes time off instead of payment for
overtime then the amount of time off during ordinary
hours will be taken at ordinary time rate, that is one hour
for each hour worked.
(c) If requested by an employee, an employer must
within one week of receiving a request pay the
employee for any overtime worked. The employee must
be paid at overtime rates.
36. MA000022 Cleaning Services Award
2010
28.9 Where an employer and an employee agree time off
instead of payment for overtime worked may be taken
provided that such time off instead is taken no longer than
four weeks after the overtime is worked.
(a) For the purposes of this clause time off instead will
be calculated on an hour for hour basis, that is one hour
for each hour worked.
(b) Where time off instead is not taken within four
weeks of accrual the employer will pay the overtime at
the rate provided for in this clause.
(c) If an employee resigns or their employment is
terminated prior to taking time off instead of accrued
overtime, then the overtime will be paid as if they had
not agreed to take time off instead.
37. MA000103 Supported Employment
Services Award 2010
21.7 Time off instead of overtime payment
Where an employee has performed duty on overtime,
they may be released from duty to take time off instead
of receiving a payment for overtime for a period not
exceeding the period of overtime actually worked,
subject to the following conditions:
(a) An employee may only be released from duty at the
request of the employee and with the agreement of the
employer. Such agreement will be in writing and be
kept with the time and wage records.
(b) An employee may not accumulate more than 20
hours to be taken as leave instead of overtime payment
and leave will be taken within four weeks of the
accrual. Where such leave is not taken in this period it
will be paid for at the appropriate overtime rate.
(c) This provision will only apply in respect of overtime
worked between Monday to Friday inclusive. Normal
penalties for overtime worked on Saturday, Sunday and
public holidays will apply for those days.
http://www.fwc.gov.au/documents/modern_awards/award/MA000103/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000022/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000026/default.htm
[2016] FWCFB 4579
38
CATEGORY (iii): Awards that require accrued TOIL to be taken within four weeks
38. MA000112 Local Government
Industry Award 2010
24.3 Time off instead of payment for overtime
(a) An employee may elect, with the consent of the
employer, to take time off instead of payment for
overtime.
(b) Overtime taken as time off during ordinary time
hours must be taken at the ordinary time rate, that is an
hour off for each hour of overtime worked.
(c) Time off instead of payment for overtime must be
taken at a mutually convenient time and within four
weeks of the overtime being worked.
(d) Unless otherwise agreed, an employer will provide
payment at the appropriate overtime rate for any
overtime worked under clause 24.1 where time off has
not been taken within four weeks of the overtime being
worked.
39. MA000113 Water Industry Award
2010
26.3 Time off instead of payment for overtime
(a) An employee may elect, with the consent of the
employer, to take time off instead of payment for
overtime that would otherwise be payable under this
clause.
(b) Overtime taken as time off during ordinary time
hours must be taken at the ordinary time rate, that is an
hour off for each hour of overtime worked.
(c) Time off instead of payment for overtime must be
taken at a mutually convenient time and within four
weeks of the overtime being worked.
(d) Unless otherwise agreed, an employer will provide
payment at the appropriate overtime rate for any
overtime worked under this clause where time off has
not be taken within four weeks of the overtime being
worked.
40. MA000120 Children’s Services
Award 2010
23.2 Overtime rates
...
(c) Time off instead of payment for overtime
An employee and an employer may agree that an
employee will be provided with time off instead of
being paid an overtime payment for all authorised work
performed outside of or in excess of the ordinary or
rostered hours subject to the following:
(i) any periods of time off in ordinary hours will
equate to the relevant period of overtime worked;
(ii) an employee must not accumulate more than 20
hours of time off which must be taken within four
weeks of its accrual. Where time off is not taken the
overtime will be paid for in the next pay period at
the appropriate rate of overtime applicable; and
(iii) notwithstanding clause 23.2(c)(ii), by agreement
between the employee and the employer, time off
instead of payment for overtime may be accrued and
taken as part of annual leave.
http://www.fwc.gov.au/documents/modern_awards/award/MA000120/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000113/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000112/default.htm
[2016] FWCFB 4579
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CATEGORY (iv): Awards that specify accrued TOIL must be taken within 12 months
41. MA000037 Quarrying Award
2010
28.9 Time off instead of payment for overtime
(a) An employee may elect, with the consent of the employer, to
take time off instead of payment for overtime at a time or times
agreed with the employer within 12 months of the said election.
(b) Overtime taken as time off during ordinary time hours will
be taken at the ordinary time rate; that is an hour for each hour
worked.
(c) If, having elected to take time as leave in accordance with
clause 28.9(a), the leave is not taken for whatever reason,
payment for time accrued at overtime rates will be made at the
expiry of the 12 month period or on termination.
(d) Where no election is made in accordance with clause
28.9(a), the employee must be paid overtime rates in accordance
with this award.
42. MA000054 Asphalt Industry
Award 2010
24.8 Time off instead of payment of overtime
(a) An employee may elect, with the consent of the employer, to
take time off instead of payment for overtime at a time or times
agreed with the employer within 12 months of the said election.
(b) Overtime taken as time off during ordinary hours of work
will be taken at the ordinary time rate; that is an hour for each
hour worked.
(c) If, having elected to take time as leave in accordance with
clause 24.8(a), the leave is not taken for whatever reason,
payment for time accrued at overtime rates will be made at the
expiry of the 12 month period or on termination.
(d) Where no election is made in accordance with clause
24.8(a), the employee will be paid overtime rates in accordance
with this award.
43. MA000055 Cement and Lime
Award 2010
23.9 Time off instead of payment for overtime
(a) An employee may elect, with the consent of the employer, to
take time off instead of payment for overtime at a time or times
agreed with the employer within 12 months of the said election.
(b) Overtime taken as time off during ordinary time hours will
be taken at the ordinary time rate; that is an hour for each hour
worked.
(c) If, having elected to take time off in accordance with clause
23.9(a) and the time off is not taken for whatever reason,
payment for time accrued at overtime rates will be made at the
expiry of the 12 month period or on termination.
(d) Where no election is made in accordance with clause
23.9(a), the employee must be paid overtime rates in accordance
with this award.
44. MA000057 Premixed Concrete
Award 2010
23.9 Time off instead of payment for overtime
(a) An employee may elect, with the consent of the employer, to
take time off instead of payment for overtime at a time or times
agreed with the employer within 12 months of the said election.
(b) Overtime taken as time off during ordinary time hours will
be taken at the ordinary time rate; that is an hour for each hour
worked.
http://www.fwc.gov.au/documents/modern_awards/award/MA000057/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000055/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000054/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000037/default.htm
[2016] FWCFB 4579
40
CATEGORY (iv): Awards that specify accrued TOIL must be taken within 12 months
(c) If, having elected to take time as leave in accordance with
clause 23.9(a), the leave is not taken for whatever reason,
payment for time accrued at overtime rates will be made at the
expiry of the 12 month period or on termination.
(d) Where no election is made in accordance with clause
23.9(a), the employee must be paid overtime rates in accordance
with this award.
45. MA000116 Legal Services
Award 2010
34.5 Time off instead of payment for overtime
(a) An employee may elect, with the consent of the employer, to
take time off instead of payment for overtime at a time or times
agreed with the employer within 12 months.
(b) Overtime taken as time off during ordinary time hours will
be taken at the ordinary time rate; that is, an hour for each hour
worked.
(c) If, having elected to take time as leave and the leave is not
taken for whatever reason, payment for time accrued at overtime
rates will be made at the expiry of the 12 month period or on
termination.
(d) The employer must keep accurate records of time accrued as
time off instead of payment for overtime.
CATEGORY (v): Awards that specify that TOIL must be taken ‘in the same roster cycle as the working
of the overtime’
46. MA000060 Aluminium Industry
Award 2010
21.8 Time off instead of payment for overtime
An employee may elect, with the consent of the employer, to
take time off instead of payment for overtime at a time or times
agreed with the employer. The employee may, without loss of
pay, take off one hour of rostered work time for each hour of
overtime worked. The time off instead payment for overtime
must be taken in the same roster cycle as the working of the
overtime.
CATEGORY (vi): Awards that specify that if TOIL is not taken within 3 months of accrual
47. MA000018 Aged Care Award
2010
25.1 Overtime rates
...
(c) Time off instead of payment for overtime
By mutual agreement, a full-time or a part-time employee may
be compensated by way of time off instead of payment of
overtime (time for time) on the following basis:
(i) Time off instead of payment for overtime must be taken
at ordinary rates within three months of it being accrued.
(ii) Where it is not possible for an employee to take the time
off, instead of payment for overtime, within the three month
period, it is to be paid out at the appropriate overtime rate
based on the rates of pay applying at the time payment is
made.
(iii) An employee cannot be compelled to take time off
instead of overtime.
http://www.fwc.gov.au/documents/modern_awards/award/MA000018/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000060/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000116/default.htm
[2016] FWCFB 4579
41
CATEGORY (vii): Awards with unique provisions
48. MA000078 Book Industry
Award 2010
19. Overtime and penalty rates
Where an employee is required to work overtime in any week,
the employee will be entitled to time off for a period equivalent
to the overtime worked to be taken at a time mutually agreed.
Where such time off has not been taken by the end of the month
following, the employee will be paid for such overtime at the rate
of time and a half for the first eight overtime hours in any week
and at the rate of double time for all overtime hours in excess of
eight hours in any week.
49. MA000088 Electrical Power
Industry Award
2010
26.3 Time off instead of overtime payment
Where overtime is worked and payment is due in the terms of
this clause, time off may be granted instead of payment on the
following basis:
(a) One day off may be substituted for a portion of the payment
due with the balance of the payment being made in money
where:
(i) at least a full day of overtime is worked on a Saturday or
Sunday by a day worker; or
(ii) at least a full shift of overtime is worked on a rostered day
off by a shiftworker, or where a shiftworker works a double
shift in the absence of the incoming shift relief.
(b) A maximum of 10 such days off will be granted in any year.
The year period for the granting of the maximum of 10 days will
be the leave year for each employee. The taking of time is subject
to operational requirements.
(c) The granting of such time off will not be used as a basis to
increase the number of employees located at any establishment.
http://www.fwc.gov.au/documents/modern_awards/award/MA000088/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000078/default.htm
[2016] FWCFB 4579
42
Attachment D—List of the 44 modern awards to be varied
In accordance with paragraph [101] above, it is proposed that the model TOIL provision be inserted in
the following 44 modern awards:
Award code Award title
Overtime
provision
TOIL
MA000115 Aboriginal Community Controlled Health
Services Award 2010
24 24.6 ordinary rate
MA000018 Aged Care Award 2010 25 25.1(c) ordinary rate
MA000048 Airline Operations—Ground Staff Award
2010
32 32.1(d) ordinary rate
MA000060 Aluminium Industry Award 2010 21 21.8 ordinary rate
MA000118 Animal Care and Veterinary Services
Award 2010
24 24.4 ordinary rate
MA000054 Asphalt Industry Award 2010 24 24.8 ordinary rate
MA000019 Banking, Finance and Insurance Award
2010
23 23.4 -
23.5
ordinary rate
MA000055 Cement and Lime Award 2010 23 23.9 ordinary rate
MA000070 Cemetery Industry Award 2010 23 23.2 ordinary rate
MA000022 Cleaning Services Award 2010 28 28.9 ordinary rate
MA000083 Commercial Sales Award 2010 23 23.4 ordinary rate
MA000023 Contract Call Centres Award 2010 26 26.5 ordinary rate
MA000075 Educational Services (Post-Secondary
Education) Award 2010
24 24.3(a),
24.4(a)
ordinary rate
MA000076 Educational Services (Schools) General
Staff Award 2010
27 27.2 (a) ordinary rate
MA000077 Educational Services (Teachers) Award
2010
B.4 Sched
B.4.2
ordinary rate
MA000088 Electrical Power Industry Award 2010 26 26.3 overtime rate
A
MA000111 Fire Fighting Industry Award 2010 26 26.2(c) ordinary rate
(Private
sector only)
MA000094 Fitness Industry Award 2010 26 26.4 ordinary rate
MA000073 Food, Beverage and Tobacco
Manufacturing Award 2010
33 33.1 (d) ordinary rate
MA000105 Funeral Industry Award 2010 24 24.5 ordinary rate
MA000061 Gas Industry Award 2010 23 23.2 ordinary rate
MA000026 Graphic Arts, Printing and Publishing
Award 2010
33 33.9 ordinary rate
MA000027 Health Professionals and Support
Services Award 2010
28 28.3 ordinary rate
MA000116 Legal Services Award 2010 34 34.5 ordinary rate
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000116/ma000116-39.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000116/ma000116-39.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000116/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000027/ma000027-33.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000027/ma000027-33.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000027/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000026/ma000026-38.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000026/ma000026-38.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000026/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000061/ma000061-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000061/ma000061-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000061/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000105/ma000105-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000105/ma000105-29.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000105/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000073/ma000073-38.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000073/ma000073-38.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000073/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000094/ma000094-31.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000094/ma000094-31.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000094/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000111/ma000111-31.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000111/ma000111-31.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000111/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000088/ma000088-31.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000088/ma000088-31.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000088/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000077/ma000077-34.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000077/ma000077-34.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000077/ma000077-34.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000077/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000076/ma000076-32.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000076/ma000076-32.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000076/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000075/ma000075-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000075/ma000075-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000075/ma000075-29.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000075/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000023/ma000023-31.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000023/ma000023-31.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000023/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000083/ma000083-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000083/ma000083-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000083/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000022/ma000022-33.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000022/ma000022-33.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000022/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000070/ma000070-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000070/ma000070-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000070/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000055/ma000055-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000055/ma000055-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000055/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000019/ma000019-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000019/ma000019-28.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000019/default.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000019/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000054/ma000054-29.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000054/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000118/ma000118-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000118/ma000118-29.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000118/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000060/ma000060-26.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000060/ma000060-26.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000060/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000048/ma000048-37.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000048/ma000048-37.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000048/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000018/ma000018-30.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000018/ma000018-30.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000018/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000115/ma000115-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000115/ma000115-29.htm
http://www.fwc.gov.au/documents/modern_awards/award/MA000115/default.htm
[2016] FWCFB 4579
43
Award code Award title
Overtime
provision
TOIL
MA000112 Local Government Industry Award 2010 24 24.3 ordinary rate
MA000010 Manufacturing and Associated Industries
and Occupations Award 2010
40 40.1(d) ordinary rate
MA000030 Market and Social Research Award 2010 22 22.2 ordinary rate
MA000063 Passenger Vehicle Transportation Award
2010
23 23.3 ordinary rate
MA000051 Port Authorities Award 2010 21 21.3 ordinary rate
MA000057 Premixed Concrete Award 2010 23 23.9 ordinary rate
MA000037 Quarrying Award 2010 28 28.9 ordinary rate
MA000015 Rail Industry Award 2010 23 23.3 ordinary rate
MA000106 Real Estate Industry Award 2010 24 24.2 ordinary rate
MA000068 Seafood Processing Award 2010 26 26.1(d) ordinary rate
MA000121 State Government Agencies Award 2010 23 23.4 ordinary rate
MA000084 Storage Services and Wholesale Award
2010
24 24.3 ordinary rate
MA000087 Sugar Industry Award 2010 31 31.6 ordinary rate
MA000066 Surveying Award 2010 23 23.1(b) ordinary rate
MA000041 Telecommunications Services Award 2010 21 21.5 ordinary rate
MA000042 Transport (Cash In Transit) Award 2010 28 28.2 ordinary rate
MA000043 Waste Management Award 2010 30 30.5 ordinary rate
MA000113 Water Industry Award 2010 26 26.3 ordinary rate
MA000090 Wine Industry Award 2010 30 30.6 ordinary rate
MA000044 Wool Storage, Sampling and Testing
Award 2010
25 25.5 ordinary rate
A Attachment F to the July 2015 decision incorrectly showed the Electrical Power Industry
Award 2010 as providing for TOIL at an ordinary rate but it provides TOIL at overtime rates
in clause 26.3.
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000044/ma000044-30.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000044/ma000044-30.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000044/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000090/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000090/ma000090-35.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000090/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000113/ma000113-31.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000113/ma000113-31.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000113/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000043/ma000043-35.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000043/ma000043-35.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000043/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000042/ma000042-33.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000042/ma000042-33.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000042/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000041/ma000041-26.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000041/ma000041-26.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000041/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000066/ma000066-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000066/ma000066-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000066/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000087/ma000087-36.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000087/ma000087-36.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000087/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000084/ma000084-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000084/ma000084-29.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000084/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000121/ma000121-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000121/ma000121-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000121/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000068/ma000068-31.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000068/ma000068-31.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000068/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000106/ma000106-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000106/ma000106-29.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000106/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000015/ma000015-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000015/ma000015-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000015/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000037/ma000037-33.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000037/ma000037-33.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000037/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000057/ma000057-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000057/ma000057-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000057/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000051/ma000051-26.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000051/ma000051-26.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000051/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000063/ma000063-28.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000063/ma000063-28.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000063/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000030/ma000030-27.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000030/ma000030-27.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000030/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000010/ma000010-45.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000010/ma000010-45.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000010/default.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000112/ma000112-29.htm
https://www.fwc.gov.au/documents/documents/modern_awards/award/MA000112/ma000112-29.htm#TopOfPage
http://www.fwc.gov.au/documents/modern_awards/award/MA000112/default.htm
[2016] FWCFB 4579
44
1 [2015] FWCFB 4466
2 [2015] FWCFB 6847
3 The changes are summarised in the April 2016 decision [2016] FWCFB 2602 at paras [3]–[4]
4 [2016] FWCFB 2602
5 These 26 awards currently provide for overtime but not for time off in payment for overtime.
6 See [2016] FWCFB 2602 at paras [49]–[53]
7 [2016] FWCFB 4258
8 Directions 6 October 2015
9 We note that Henry Davis York, solicitors, filed a submission on behalf of Aurizon, Australian Rail Track Corporation,
Brookfield Rail Pty Ltd, Metro Trains Melbourne, Sydney Trains and V/Line Passenger Pty Ltd, opposing the inclusion
of the model term in the Rail Industry Award 2010 and supporting the submissions advanced by Ai Group and ABI. We
have not regarded this correspondence as an award specific submission as it merely adopted the general submissions
advanced by Ai Group and ABI and did not advance any specific submission relating to the particular circumstances
pertaining to the Rail Industry Award 2010.
10 [2016] FWCFB 2602 at para. [54]
11 Ai Group submission 9 November 2015 at para. [14]
12 Ai Group submission 9 November 2015 at para. [10]
13 Ai Group submission 9 November 2015 at para. [18]
14 Ai Group submission 9 November 2015 at para. [20]
15 Ai Group submission 9 November 2015 at para. [23]
16 Transcript at paras 1858–1863
17 ABI and NSWBC submission 2 December 2015 at para. 4.3
18 See Modern Awards Review 2012 [2012] FWAFB 5600 at [82] to [85]
19 [2014] FWCFB 1788 at paras [23]–[24]
20 (1994) 57 IR 121
21 AMWU submission in reply, 30 November 2015 at paras 5–6 and AMWU—Vehicle division submission in reply,
30 November 2015 at para. 9
22 Ai Group submission 9 November 2015 at para. [23]
23 Re Shop, Distributive and Allied Employees’ Association (2003) 135 IR 1 at para. [11] (per Giudice J) and para. [24] (per
Watson SDP and Raffaelli C)
24 Ai Group submission 13 November 2014 at para [7]
25 Ai Group supplementary submission 18 May 2015 at paras 53–54
26 Ibid at para. 54
27 Transcript 5 May 2015 at para. 200
28 Ibid
29 Ai Group submission in reply 23 April 2015 at para. 2
30 [2014] FWCFB 1788 at para. [27]
31 [2015] FWCFB 4466 at paras [23]–[24]
32 Set out at paras [26]–[38] of [2015] FWCFB 4466
33 Ibid at para. [205]
34 Ibid at para. [249]
35 Ibid at para. [255]
36 Ibid at para. [208]
37 Ibid at paras [285] and [293]
http://www.fwc.gov.au/documents/sites/awardsmodernfouryr/AM201487-SUB-aurizonandors-041215.pdf
[2016] FWCFB 4579
45
38 Ibid at para. [264]
39 Ibid at paras [266]–[267]
40 See clause 8.5 of the variation order to the Laundry Industry (Victoria) Interim Award 1993 set out at [2015] FWCFB 4466
at paragraph [38]
41 [2015] FWCFB 4466 at para. [281]
42 [2015] FWCFB 6847 at para. [50]
43 Ibid
44 Ibid at para. [35]
45 Ibid at para. [34]
46 Transcript 5 May 2015 at para. 289
47 ABI and NSWBC submission 28 August 2015 at paras 2.16–2.24
48 Transcript 4 September at para.1652
49 See [2015] FWCFB 6847 at para. [46]
50 Ibid at para. [50]
51 See [2015] FWCFB 4466 at para. [275]
52 See [2015] FWCFB 4466
53 See [2015] FWCFB 6847 at paras [58]–[61]
54 In the case of the Amusement, Events and Recreation Award 2010
55 In the case of the Mobile Crane Hiring Award 2010
56 [2015] FWCFB 4466 at para. [266]
57 Transcript 10 December at para. 1978
58 Ibid at para. 1980
59 See [2015] FWCFB 5771 at paras [134]–[138]
60 ABI and NSWBC submission 2 December 2015at paras 4.1–4.2
61 [2015] FWCFB 4466 at para. [243]
