WHAT YOU NEED TO KNOW ABOUT TIME OFF INSTEAD OF PAYMENT FOR OVERTIME
Some private practices prefer to use a ‘Time off instead of payment for overtime’ arrangement, (commonly known as “time off in lieu” or TOIL) but did you know that there are specific obligations under the awards that cover employees working in private practice, that as an employer you are required to meet?
IF YOU USE TIME OFF IN LIEU arrangements at your practice, you need to make sure you comply with these obligations.
Time off instead of payment for overtime needs to be by agreement
A time off instead of payment for overtime arrangement needs to be agreed between the employer and employee. The arrangement needs to be a genuine agreement between both parties. The employer must not exert undue influence or pressure on the 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.
Health Professionals and Support Services Award 2020 (HPSSA)
For those covered under the Health Professionals and Support Services Award 2020 (HPSSA), the agreement needs to be in writing and the subject of a separate agreement for each occasion that time off is granted instead of the payment of overtime. You will need a separate written agreement each time.
The agreement must state:
1. the number of overtime hours to which it applies and when those hours were worked;
2. that the employer and employee agree that the employee may take time off instead of being paid for the overtime;
3. that if the employee requests payment 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;
4. that any payment, (requested by the employee as above) must be paid in the next pay period following the request.
Schedule G within the HPSSA includes an agreement form that you may wish to use as an ‘Agreement for Time off instead of payment for overtime’. There is no requirement to use this form of agreement. An exchange of emails between employee and employer or other electronic means is also acceptable, provided it includes all the required information.
The employer must keep a copy of any agreements for time off instead of payment for overtime as part of the employee’s records.
Nurses Award 2020
Under the Nurses Award an employee and employer may agree to the employee taking time off instead of being paid for overtime that has been worked by the employee. However, unlike the HPSSA the Award does not specify the need for a separate written agreement on each occasion.
How is the time off to be taken?
Under the HPSSA, the time that an employee is entitled to take off is the same as the number of overtime hours worked.
For employees covered by the Nurses Award, the time that an employee is entitled to take off is equivalent to the overtime payment
that would have been made. For example, if a nurse works 1 hour of overtime, (at an overtime payment rate of 150%) then they would be entitled to take 1.5 hours as time off instead of payment for overtime. Under both Awards, time taken in lieu must be taken within 6 months after the overtime is worked at a time or times agreed by the employer and employee. If the time taken in lieu is not taken within 6 months, the employer must pay the employee for the overtime in first pay period after the expiry of the 6 months at the applicable overtime rate for the time worked.
If the employee requests at any time to be paid for the overtime covered by the agreed arrangement that has not been 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.
What happens to the time off in lieu if employment is terminated?
On the termination of the employee’s employment, time off for overtime worked by the employee to which the agreement applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked. dr.
KNOW THE DIFFERENCE: THE HEALTH PROFESSIONALS AND SUPPORT SERVICES AWARD (HPSSSA) 2020 AND NURSES AWARD 2020
Employees in private practice are generally covered by the HPSSA 2020 or Nurses Award 2020.
• Examples of positions under the HPSSA 2020 include practice managers, receptionists, medical secretaries, orthoptists, and more.
• Examples of positions under the Nurses Award 2020 include nursing assistants, enrolled nurses, student enrolled nurses, registered nurses, nurse practitioners, and more.
While there are many shared provisions between the two Awards, it’s important to be aware of key differences to ensure compliance with minimum entitlements.
If you would like to know more about time off instead of payment of overtime, please contact our Workplace Relations team on (02) 9439 8822 or via email at workplace@amansw.com.au.
While there are many shared provisions between the two Awards, it’s important to be aware of key differences to ensure compliance with minimum entitlements.
Speak to our AMA (NSW) Workplace Relations team if you’re unsure which Award applies to your employee.
ANNUAL LEAVE
• Nurses Award 2020:
Full-time employees receive 5 weeks annual leave per year, and full-time employees that meet the definition of a shift worker [see clause 22.2 (b) of the Award for definition] receive 6 weeks annual leave per year.
• HPSSA 2020:
WORKPLACE RELATIONS
MEAL BREAKS
• Nurses Award 2020:
Employees who work more than 5 hours will be entitled to an unpaid meal break of 30 to 60 minutes which needs to be taken between the 4th and 6th hour after beginning work.
Full-time employees receive 4 weeks annual leave per year as set out under the National Employment Standards, however full-time employees that meet the definition of a shift worker (see clause 2 of the Award for definition) receive 5 weeks annual leave per year.
Part-time employees receive the pro-rata equivalent under each Award.
PART-TIME EMPLOYEES
• Nurses Award 2020:
Both the employer and employee need to agree in writing:
- The guaranteed minimum number of hours to be worked and the rostering arrangements which will apply to those hours.
- Rosters are a fixed weekly or fortnightly schedule which sets out the employee’s daily ordinary hours and start and finish times. Rosters need to be made available to employees at least 7 days before the commencement of the roster period.
• HPSSA 2020:
Both the employer and employee need to agree in writing:
- The regular pattern of work including the number of hours to be worked each week, days of the week the employee will work and the start and finishing times of each day.
- If an employee is required by the employer to be on duty during a meal break, the employee will be paid overtime for all time worked until the meal break is taken.
- If an employee is required by the employer to remain available during a meal break but is free from duty, the employee will be paid at ordinary rates for a 30-minute meal break.
• HPSSA 2020:
Employees who work more than 5 hours will be entitled to an unpaid meal break of 30 to 60 minutes and the timing of the meal break can be varied by agreement between employer and employee.
OVERTIME RATES
• Nurses Award 2020:
Ordinary hours referred to below are set out in clause 13 of the Award.
- Full-time and part-time employees receive for hours worked in excess of the ordinary hours on any day or shift.
- Part-time employees will receive overtime for all hours worked in excess of the rostered daily ordinary full-time hours.
- Casual employees receive overtime for hours worked in excess of the ordinary hours on any day or shift.
• HPSSA 2020:
When stating ‘their ordinary hours’ below, it is in reference to the employee’s hours in their written agreement.
- Full-time employees receive overtime for hours worked in
excess of their ordinary hours OR in excess of 10 hours per shift.
- Part-time employees receive overtime for hours worked in excess of their ordinary hours except where there is a written variation agreement (see clause 10.3 of Award), AND/OR for hours worked in excess of 10 hours per shift, AND/OR for hours worked in excess of an average of 38 hours per week in a fortnight or 4-week period.
These differences while being the key differences are not exhaustive and it’s important to review the applicable Award carefully. dr.
The AMA (NSW) Workplace Relations Team is here to help you select the correct Award and assist with interpretation and application. For more information, please email workplace@amansw.com.au or call (02) 9439 8822.