The NFF has informed the farming associations that a model term for Time Off In Lieu has been finalized and the model clause is found below. This clause is more complex than the current clauses contained in the Pastoral and Horticultural award.
This term is proposed to be included in the Pastoral Award 2010 and Horticulture Award 2010. The NFF seeks evidence from members about the impracticality of this term in the pastoral and horticulture industries by no later than 1 November 2015. Material is due to be filed by 9 November. The proposed model term is as follows:
Model term dealing with time off in lieu of overtime
1. Time off in lieu of payment for overtime
1.1 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, in accordance with this clause.
1.2 The following requirements apply to time off in lieu of payment for overtime:
(a) A separate written agreement must be made by the employee and employer for each occasion on which overtime that has been worked is to be taken as time off in lieu. Each such agreement must be retained as an employee record and must:
(i) state when the employee started and ceased working the overtime hours;
(ii) state that the employee and employer agree that the employee may take time off in lieu of payment for the overtime; and
(iii) include a note in the following terms:
‘If requested by the employee at any time, the employer must pay the employee for any accrued entitlement to take time off in lieu of payment for overtime 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 next pay period following the request.’
(b) Overtime taken as time off during ordinary time hours shall be taken at the ordinary time rate; that is, an hour for each overtime hour worked.
(c) The time to be taken off in lieu of overtime must be agreed between the employee and employer and must be taken within six months of the overtime being worked. Otherwise, payment for the overtime must be made to the employee at overtime rates in the next pay period after that six month period.
(d) Notwithstanding any other provision of clause 1.2, if requested by an employee at any time, the employer must pay the employee for any accrued entitlement to take time off in lieu of payment for overtime 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 next pay period following the request for payment.
(e) If, upon termination of employment, an employee has an accrued entitlement to take time off in lieu of payment for overtime which the employee has not yet used, the employee must be paid for the overtime at the overtime rate applying to the overtime worked.
1.3 An employee who is entitled to request a change in working arrangements under section 65 of the Fair Work Act 2009 may make a request under that section for time off in lieu of payment for overtime at a time or times specified in the request or at a time or times to be subsequently agreed with the employer. This clause will apply to such time off in lieu. Pursuant to section 65(5) of the Fair Work Act 2009, the employer may refuse such a request only on reasonable business grounds.
1.4 An employer must not exert undue influence or undue pressure on an employee in relation to a decision by the employee to make, or not make, an agreement to take time off in lieu of payment for overtime.
Note: Under s.345 of the Fair Work Act 2009, a person must not knowingly or recklessly make a false or misleading representation about an employee’s workplace rights under this award clause.
Please note all submissions need to be lodged by 1 November 2015. You can forward your submissions to Sarah McKinnon, NFF
