Category: leave

How do you calculate Time off in Lieu for your employees

October 2015

Sorry to alert you, but there are less than two months until Christmas Day (or is it fewer than two months?) Either way, the ‘silly season’ will soon be upon us and some businesses will be experiencing pre-Christmas panic and requiring their employees to work additional hours to fulfil orders, meet targets, or just go that ‘extra mile’ to deliver great customer service. So what happens when your budget doesn’t stretch for additional overtime payments to staff, or employees would rather take advantage of the sunshine and take time off in lieu of payment to spend with their kids on school holidays? Can everyone have their cake and eat it, too? Time Off in Lieu (TOIL) arrangements allow an employee to take time off from work in lieu of overtime payment. The following short article by Nicole Hebblewhite will help explain the basics of TOIL so that the process can be embraced, not feared, and everyone is a winner. Nicole is a graduate in the Melbourne office of legal firm Holding Redlich. She works with Charles Power, employment law expert and author of the Employment Law Handbook.

TOIL – getting the calculations right

Currently, 83 of 122 modern awards allow for an employee and employer to make a TOIL agreement. Of those 83 awards, 59 provide that TOIL is calculated at the ordinary rate (i.e. ‘time for time’), while 24 provide that time off for the purpose of TOIL is calculated at the employee’s overtime rate (i.e. ‘time for penalty). As part of the four-yearly review of modern awards, the Full Bench of the Fair Work Commission has recently finalised a model TOIL term to be inserted into particular modern awards ([2015] FWCFB 6847 (6 October 2015)). The term will vary 113 modern awards which provide for employees to be paid overtime. The term will facilitate employees reaching an agreement with their employer to take TOIL instead of payment for overtime. The clause requires that: the employee and employer agree to take TOIL at a mutually-agreed time; TOIL will be taken within six weeks of the overtime being worked. If this does not occur, the overtime is to be paid to the employee at overtime rates; a separate written agreement is made for each occasion that overtime is to be taken as TOIL; any accrued, but untaken, TOIL must be paid to the employee on termination at overtime rates; and if requested by the employee, the employer must pay the employee for any accrued but untaken TOIL entitlement at overtime rates. The term offers a financial incentive to employers to enter into a TOIL agreement as TOIL is calculated at the ordinary time rate. That is, an employee will receive an hour of TOIL for each hour of overtime worked, rather than at the relevant overtime penalty rate. Any award that currently allows TOIL to be calculated using the time for penalty method will remain unchanged. Non-award covered employees While the National Employment Standards in the Fair Work Act 2009 (Cth) (Act) do not provide for compensation, whether monetary or otherwise, for employees who work overtime, both award-covered and award-free employees could reach a TOIL agreement with their employer by requesting a change in working arrangements under section 65 of the Act. An employer can only refuse this request on reasonable business grounds. An employment contract or enterprise bargaining agreement may also facilitate the making of a TOIL agreement between an employee and their employer.


If you need to structure your TOIL agreement with employees, or you have any other outstanding workplace issues, get them sorted before Christmas by ordering your copy of the Employment Law Handbook, written by Editor-in-Chief Charles Power. This comprehensive book is full of advice, tips, warnings, templates, legal case studies and checklists to ensure you can simplify your business. Keep up the good work, Jeff Salton Editor, Workplace Bulletin

Not coming into work today – but for a good cause?

September 2015

It’s arguably the forgotten form of leave. Your employees aren’t sick, they’re not caring for a new baby, and they’re not taking a well-earned break. So what are they doing? In some circumstances, they might be taking authorised community service leave (CSL). CSL isn’t the can of worms it sounds like. Commendable though it might be, your employees aren’t entitled to extra leave in a year to run a bake sale. But it’s a core element of the Fair Work Act and its National Employment Standards, and for reasons that will become clear, it’s a lot more likely to be taken over the summer. And in many jurisdictions, you can be stung by heavy penalties for dismissing or disadvantaging an employee that tries to take it.

What does the law say about CSL?

Under the NES, an employee may take CSL for: Any period in which he or she engages in an eligible community service activity; Any reasonable travelling time associated with the activity; Any reasonable rest time immediately following the activity. There is no limit on the amount of CSL an employee can take. Like the rest of the NES, an employee can enforce their right to take CSL under the Fair Work system – but note that most States and Territories also penalise an employer heavily if taking or attempting to take CSL results in adverse consequences for the employee. That’s in addition to the potential penalties in store under the Fair Work Act if you’re deemed to have taken adverse action against an employee, just because they exercised a right.

What’s an ‘eligible community service activity’?

Currently, eligible community service activity includes: A voluntary emergency management activity (VEMA) which involves dealing with an emergency or a disaster. To participate in a VEMA, an employee must be a member of a recognised emergency management body. Examples include civil defence bodies, volunteer firefighting bodies, or resecure bodies. That body must request the volunteer’s participation in duties. Jury duty. Community service activity to volunteer in an emergency situation is unpaid leave under the NES, but some State and Territory laws do create an obligation to pay employees for the time off. Queensland, Tasmania and Western Australia all expect you to pay ordinary wages during an employee’s absence. Under the NES, you have to pay an employee jury duty for their first 10 days of service at their base rate of pay. But Queensland, Victoria and Western Australia will all expect that you keep making up the difference between the jury service fee paid by the state and the employee’s wages.

Why the heat comes on in summer

The biggest volunteer emergency response activity in Australia revolves around community firefighters, particularly around towns and cities where the risk of bushfire rockets to skyhigh levels during those tinder-dry stretches of December through February. It’s the time of the year when you’re must likely to see employees invoking an entitlement to CSL. You have some rights in terms of what you request from them, but failing to meet your obligations in this instance could be a particularly bad look. For times like this, we’ve developed a brief and affordable (but comprehensive) guide. Authored by Employment Law Practical Handbook Editor-in-Chief Charles Power, the Community Service Leave Guide covers the sometimes confusing variations to entitlements across each State and Territory, while also explaining how your obligations may vary under modern awards or enterprise agreements. Until next time, Joseph Nunweek Editor, Workplace Bulletin

When you can avoid redundancy pay and when you can’t …

July 2015

It's a long road to a fair and lawful redundancy process.

In previous Workplace Bulletins, I've talked about the hurdles small businesses face in having to set up a fair and effective procedure for selecting employees to retrench, and ensuring that each of those employees gets their say.

But when you get to the point when employees are actually notified of their redundancy, you've got to do right by them one more time.

Specifically, you need to make sure they receive their full redundancy pay entitlements, in accordance with the National Employment Standards (NES), a modern award or enterprise agreement that covers your employees, or an employment contract or workplace policy.

Then there's the matter of sorting out the rest of their final pay - and getting the tax right on top of it.

When you can avoid redundancy pay

It's no wonder that some employers want to know when they'll be exempt from redundancy pay obligations.

And believe it or not, there's a few occasions when you can do so, including:

where the employee has voluntarily resigned; if you are a small business employer; if the business is being sold to an new employer and an employee is keeping their job, meaning they're only technically redundant; if the business is going into insolvency (the less said about this one, the better).

The Fair Work Act also says you can pay less redundancy pay, or none at all, if you can "obtain other acceptable employment for the employee".

So is it time for you to hop on Seek and start finding new jobs for them, or start coaching them through job interviews?

Not exactly – read on to learn about a recent case which makes it pretty clear when the Court will be convinced you found new roles for employees yourself.

Federal Court: Security company didn't do enough to obtain new employment

In FBIS International Protective Services (Aust) Pty Ltd v Maritime Union of Australia [2015] FCAFC 90, a security company (FBIS) was trying to apply for a redundancy pay waiver under the Fair Work Act.

In October 2013, it lost the tender to provide security services to Asciano for its stevedoring facilities. Another security company, ACG, won the tender.

49 employees who had lost their jobs with FBIS when it lost the tender accepted new employment with ACG instead. Remember, this was a failed bid for a tender — not one business selling out to another. So ACG didn't recognise the employees' previous service with FBIS.

The Federal Court took a good, long look at what "obtains acceptable employment" meant in the context of the Fair Work Act.

It found that FBIS's role was limited to providing the contact details of its employees to ACG — who, naturally, would have been on the lookout for experienced employees with knowledge of the Asciano sites.

While FBIS gave its employees a chance to enter a recruitment process with ACG, this wasn't the same as getting them a guaranteed offer of employment.

So in that case, what would constitute obtaining new employment? A good example might be finding employee a new job with a long-standing business connection or associate. You as the employer would be the active force in creating the new business opportunity.

This could be easier said than done in practice. Whether or not you actively set out to find new work for an employee is down to you, and your needs.

But remember — you need to apply to the Fair Work Commission if you want to vary an employee's redundancy pay. You can't get away with just making a call on it yourself — so don't!

Redundancy is a big topic — and in uneasy economic times, it can feel bigger still. I've scratched the surface of one part today, but our Managing Redundancies eBook lays out your many redundancy responsibilities in one clear guide.

Today's the day for wage changes

Last month, I wrote to you about the changes to the minimum wage the new financial year would bring. Time flies when you're having fun, but it also flies when you're busy — and we're already at July 1.

So, remember that from today:

The weekly minimum wage increases to $656.90 a week, or $17.29 an hour. That's up from $640.90 a week, or $16.87 an hour. All federal modern award rates will increase by 2.5%.

With all these changes, we decided it was high time to update our Wages Guide. It's released next week — and I'll be telling you more about it in the coming days.

Until next time, Joseph Nunweek
Editor, Workplace Bulletin

What is defence services leave?

May 2012

When it comes to employee leave, there are many different types that can apply and often, it can be difficult to know which one to use.

Aside from annual leave, personal/carer’s leave, paid and unpaid parental leave and long service leave, there is also community services leave, adoption-related leave, study leave and many other types to consider.

Read more

4 Ways to Improve Employee Attendance in Your Workplace

April 2011

Dear Reader,

It's one of the trickiest situations an employer can face…

When an employee is consistently late to work or takes frequent 'sickies'.

Often, it seems like there's not much you can do about it, because as much as you'd love to confront your employees who constantly take sick days - or even sack them for repeated absences - there are a number of laws you must abide by.

Read more

Happy Australia Day from the Workplace Bulletin!

January 2011

Dear Reader,

Just a short one from me today…

I hope you had a great Australia Day, whatever you did and wherever you were around the country!

I had a nice, quiet day at home having a BBQ with my family and friends - and we also got a chance to head down to the beach and play some cricket!

Read on for today's article from Charles - he is going to tell you about some key rulings Fair Work Australia made in a recent decision regarding cashing-out provisions in enterprise agreements.

Read more

An Important Note About Your Jury Service Leave Obligations

November 2010

Don't forget - the NES entitlement to paid jury service leave is topped up in QLD, VIC and WA.

Under the National Employment Standards in the Fair Work Act, you must pay an employee who is on jury service leave at their base rate of pay for their ordinary hours of work.

However, under the NES, the maximum period for payment is capped at 10 days for each jury service summons (pro-rata for part-time employees). If an employee is absent from work on jury service leave for longer than 10 days, you are not obliged to pay them past that 10 days.

Read more

How The New Changes To Paid Parental Leave Will Affect You

May 2010

Earlier this month, the Federal Government released draft legislation for the much-talked about paid parental leave scheme that is due to begin on 1 January 2011. Just to remind you, the paid parental leave scheme will provide the primary carers of newborn children with 18 weeks paid leave at the national minimum wage. Read more