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Changes to Time-off-in-lieu conditions of the Health Professionals and Support Services Award 2010

9 September 2016

 

 The Fair Work Commission handed down changes to the Time-off-in-lieu (TOIL) provisions of the Health Professionals and Support Services Award 2010 on 22 August 2016.  The new provisions have been in effect since the first full pay period on or after the 22 August 2016.  These changes apply to employees and employers covered by the award.  Employees and employers in all businesses in all states with the exception of unincorporated businesses in Western Australia are covered by the award.  Thus the changes do not apply to unincorporated practices in WA.  The intention of the new TOIL clause (28.3 Time off instead of payment for overtime), which replaces the previous TOIL clause 28.3, is to clarify the intention and interpretation of the original clause.  An explanation of the new clause is below.  Each explanation of a subclause of 28.3 is numbered according to the numeral it corresponds to in clause 28.3 in the award. 

 

(a)   An employee and an employer may agree that rather than an employee being paid overtime rates in the award for hours of overtime worked by the employee, they may instead agree in writing that the employee will receive TOIL.

(b)   Each instance of TOIL agreed to by both parties needs to be recorded in writing as a separate agreement and not one agreement for multiple or ongoing instances of TOIL.

(c)   Each agreement must include the following:

  1. The number of hours of overtime the agreement applies to and when those hours of overtime were worked
  2. An explicit statement that the employee and employer agree that TOIL will be given to the employee rather than the employee being paid overtime penalties.
  3.  An explicit statement that at any time, any remaining TOIL not taken by the employee for overtime worked, must be paid to the employee at the applicable overtime rate.  E.g. if the employee agrees to 4 hours of TOIL for working 4 hours of overtime but only takes 2 hours of TOIL, they may elect to be paid for the remaining 2 hours at overtime rates.
  4.  Any payments made to the employee as described in (iii), be paid to the employee in their next pay period after their request.

(d)   The period of time off an employee may take in TOIL stipulated in each agreement is the equivalent of the number of hours of overtime they worked, e.g. 3 hours of overtime equals 3 hours of TOIL in one only agreement.

(e)   The time off must be taken by the employee:

  1.   Within 6 months after the overtime was worked and
  2.   At a time or times agreed to within the 6 months agreed to by the employer and employee.  The inference here being that the time off could be split into multiple periods of TOIL within the one agreement, I.e. 6 hours of overtime worked could be split into 3 periods of 2 hours of TOIL.

(f)    If at any time the employee would like to be paid for overtime under an agreement, which they have not yet taken as TOIL, the employer must paid them for the hours of overtime worked at the applicable overtime rate.  The payment must be made in the next pay period following the request.  

(g)   If TOIL owing to an employee has not been fully taken by the employee within 6 months of the overtime being worked, the employer must pay to the employee in their next pay period the amount they would have received for the hours of overtime worked at the applicable overtime rate.

(h)   The employer must keep all written agreements for TOIL as employee records, i.e. on the employees file for a period of at least seven years.  Employees are also advised to keep their own records of each agreement.

(i)     An employer cannot in coerce or make misrepresentations to an employee in any way to make or not make a TOIL agreement or what their entitlements are under clause 28.3.  We suggest this clause captures all aspects of clause 28.3, such as if an employer were to try to coerce an employee to only take part of the TOIL stipulated in their agreement.

(j)     If an employee makes a request for flexible work arrangements under the National Employment Standards, which involves them taking time off, they may enact a TOIL agreement as per the conditions in 28.3, provided the time off they are requesting is to compensate them for overtime worked.

(k)   If on the termination of an employees’ employment, the employee has not taken all of the TOIL owing to them as stipulated by a TOIL agreement, the employer must pay the employee for all the hours of overtime in the agreement not yet taken as TOIL.  The amount outstanding must be paid at the applicable overtime penalty rate and by the next pay period following the employees’ termination. 

 

Templates for TOIL agreements can be found in ‘Schedule J’ of the award.  The HR Advisory Service is in the process of developing TOIL request forms and will make them available to members to download from the HR library in due course. 

 

 

For more information or assistance, please contact the Osteopathy Australia HR Hotline on

 1300 143 602  or  hrhotline@osteopathy.org.au 

 


Wentworth Advantage

Disclaimer: The material contained in this publication is general comment and is not intended as advice on any particular matter. No reader should act or fail to act on the basis of any material contained herein. The material contained in this publication should not be relied on as a substitute for legal or professional advice on any particular matter. Wentworth Advantage Pty Ltd, expressly disclaim all and any liability to any persons whatsoever in respect of anything done or omitted to be done by any such person in reliance whether in whole or in part upon any of the contents of this publication. Without limiting the generality of this disclaimer, no author or editor shall have any responsibility for any other author or editor. For further information please contact Wentworth Advantage Pty Ltd.

 

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