Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards - common issue - award flexibility - time off in lieu of payment for overtime.

CONTENTS

ABBREVIATIONS

1. Introduction

[1] The July 2015 Award Flexibility decision 1 (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 2015 2 (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 2016 4 (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 decision 5 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 2016 7 (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 Directions 8 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.

[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 decision 10 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:

• 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:

‘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 standard 20.

[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:

‘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:

(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 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

[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:

[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:

‘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’
(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;

[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.

[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 practice 46.

[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 counterproductive 47 and that ‘six months seems a suitable period’.48 ABI advanced the following argument in support of the extension of the 12 week period:

‘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 period 50.

[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

[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).

[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 term 53. 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:

‘(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’.

[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 enterprise 54 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:

[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:

[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.

[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 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 decision 59 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.

[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:

[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

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.

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 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.

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___

Attachment B—List of submissions

Note this list contains only submissions made in accordance with the Directions issued on 6 October 2015.

Attachment C—The existing TOIL provisions in 49 modern awards

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:

^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.

 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]

 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]

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