• Overtime and penalty rates

    59. Overtime

     

    General conditions

    59.1

    An employee may be called for duty at any time, subject to the conditions in this clause. Employees will only be required to work in addition to their regular hours where it is reasonable for them to do so.

       

    59.2

    Overtime is to be worked by prior direction or, if the circumstances do not permit prior direction, by subsequent approval in writing.

       

    59.3

    Overtime conditions do not apply to shift workers if inconsistent with clause 67.

       

    59.4

    Overtime conditions do not apply to part time employees if inconsistent with clause 85.

       
     

    Overtime salary barrier

    59.5

    Except as specified in sub clauses 59.11 to 59.13, overtime does not apply if an employee's salary equals or exceeds the minimum salary payable at the Executive Level 1 classification level.

       
     

    Salary for overtime

    59.6

    Salary for overtime will include Intermittent Motor Driving Duties Allowance and Departmental Liaison Officer Allowance.

       

    59.7

    Salary for overtime will not include Community Language, Harassment Contact Officer, Health and Safety Representative, Emergency Warden, Chief Emergency Warden, First Aid, and Wellbeing Site Representative Allowances.

       
     

    Time off in lieu of payment for overtime

    59.8

    Time off in lieu of payment for overtime may be granted if agreed with the employee.

       

    59.9

    Time off may be taken on either:

    a. an "hour for hour " basis with a residual payment for the overtime penalty; or

    b. a "penalty hours" basis calculated by multiplying the hours payable by the overtime rate.

       

    59.10

    Where time off in lieu is not taken within 4 weeks or another agreed period, due to operational requirements, payment of the original entitlement will be made.

       
     

    Executive Level access to overtime and restriction provisions

    59.11

    The rates of pay in this Agreement recognise the special demands expected of Executive Level employees and equivalent classifications.

       

    59.12

    Employees at or above the overtime salary barrier will only access overtime, emergency duty and restriction duty provisions in exceptional cases.

    In determining whether an "exceptional case" exists the delegate may consider one or more of the following:

    a. the nature and extent of the extra duty;

    b. whether the extra duty has been directed;

    c. that the extra duty must be done, i.e. that it is unavoidable and can only be done by such employees;

    d. whether the extra duty is regular and excessive over a long period of time;

    e. whether the extra duty is burdensome; or

    f. any other relevant considerations.

       

    59.13

    Employees at or above the overtime barrier will have access to an overtime meal allowance where directed to perform duty and a meal allowance would otherwise be payable in accordance with clauses 56.32 to 56.35.

       
     

    Employees below the overtime salary barrier

    59.14

    Employees below the overtime barrier will be paid at overtime rates where an employee is specifically directed to work:

    a. outside the bandwidth hours applicable to the employee;

    b. within the bandwidth hours, but beyond the employee's regular hours for that day (refer to clause 81);

    c. on a Saturday, Sunday or public holiday.

    Where employees are directed to work an additional 15 minutes or less continuous with their ordinary duty for the day, that additional time will also be recorded as ordinary duty and not overtime.

       
     

    Overtime rates

    59.15

    Overtime worked Monday to Saturday will be paid at time and a half for the first 3 hours and double time thereafter.

       

    59.16

    All overtime payment calculations will be based on a 36 hours and 45 minutes week.

       

    59.17

    Overtime worked on Sunday will be paid at the rate of double time.

       

    59.18

    Overtime worked on public holidays will be paid at double time and a half. If an employee performs normal duty on a public holiday, duty during regular hours will be payable at time and a half, in addition to payment for the holiday.

       

    59.19

    Where, for one of the following public holidays:

    a. New Year's Day (1 January); or

    b. Australia Day (26 January); or

    c. Christmas Day (25 December); or

    d. Boxing Day (26 December)

    another day is substituted for that public holiday, the overtime rate is payable based on the day the NES determines is the public holiday.

       

    59.20

    An employee directed to work overtime on

    a. the day after Boxing Day (or, if that day falls on a Saturday or Sunday, the following Monday) or,

    b. Easter Saturday

    will be paid as if they were working on a public holiday.

       

    59.21

    Where the Commissioner directs an employee to work during their regular hours on the remaining two and a half days of the Christmas Closedown to provide essential services, the employee will have the option of being paid overtime at the rate of time and a half or receive time off in lieu at a rate of time and a half. Time worked outside of regular hours on those two and a half days will be paid as overtime at double time.

       
     

    Rest relief after overtime

    59.22

    This clause applies to an employee whose overtime hours are such that they do not have at least 8 consecutive hours off duty (plus reasonable travelling time) between finishing ordinary duty at the end of one day and the commencement of the employee's ordinary work on the next day.

       

    59.23

    The employee will be allowed to leave work after such overtime for a period of 8 consecutive hours off duty, plus reasonable travelling time, and will suffer no loss of pay for ordinary working time occurring during the employee's absence.

       

    59.24

    An employee required to resume or continue work without having had 8 consecutive hours off duty plus reasonable travelling time will be paid double ordinary time rates (for time worked) until the employee has had such time off.

       

    59.25

    The requirement for rest relief does not apply to Emergency Duty unless the time worked, excluding travelling time, is at least 3 hours on each call.

       
     

    Minimum payment

    59.26

    Where overtime duty is not continuous with ordinary duty, the minimum payment for each separate attendance will be four 4 at the prescribed overtime rate.

       

    59.27

    An employee who performs overtime while in a restriction situation will be entitled to the minimum overtime payment specified in those provisions.

       

    59.28

    An employee is not to receive greater payments from multiple periods of overtime than what the employee would have received had they remained on duty for the entire period.

       

    59.29

    Meal periods are disregarded in determining whether overtime is continuous with ordinary duty.

       

    59.30

    Where an overtime attendance involves duty both before and after midnight, minimum payment provisions for attendance will be satisfied when the total payment for the whole of the attendance equals or exceeds the minimum payment applicable to one day. Minimum payment will be calculated at the higher rate applying on either day if rates differ.

       

    59.31

    Overtime minimum payment provisions do not apply to Emergency Duty.

       
     

    Meal allowance period

    59.32

    A meal allowance period will mean:

    a. 7.00 am to 9.00 am

    b. 12 noon to 2.00 pm

    c. 6.00 pm to 7.00 pm

    d. midnight to 1.00 am

       
     

    Overtime meal allowance

    59.33

    An employee who works overtime;

    a. after the end of ordinary duty for the day, to the completion of or beyond a meal allowance period, without a paid break for a meal; or

    b. prior to the beginning of ordinary duty for the day and has an unpaid meal break;

    will be paid a meal allowance of $26.45 in addition to any overtime payment.

    The ATO will use its subscription service to adjust this rate. New rates will take effect from the next 1 January or 1 July that occurs after the date on the notification from the provider of the subscription service.

       

    59.34

    An employee who performs duty on a Saturday, Sunday, public holiday or any other day that they would not normally work, which includes an unpaid meal break, will be paid a meal allowance.

       

    59.35

    Meal allowance is not payable if it is reasonable to expect an employee to return home for a meal before commencing duty after the meal.

       
     

    Cancellation of overtime

    59.36

    If overtime planned for Saturday, Sunday or a public holiday needs to be cancelled, managers should, wherever practicable, provide employees with at least 48 hours notice.

    60. Emergency duty

    60.1

    Employees whose salary equals or exceeds the minimum salary payable at the EL1 level will not be eligible to receive payment under this clause except where specific approval has been given in writing in exceptional circumstances.

       

    60.2

    Where an employee is required to perform duty for an emergency and

    a. they were not given notice of having to perform the duty prior to ceasing their regular hours of work; and

    b. the duty is outside of their regular hours;

    the employee is on 'emergency duty'.

       

    60.3

    Where an employee is required to perform emergency duty:

    a. they will be paid for the time spent on emergency duty subject to a minimum payment of two hours, at the rate of double time; and

    b. the period of emergency duty will include the time the employee necessarily spends in travelling to and from duty.

       

    60.4

    An employee is not to receive greater payments from multiple periods of emergency duty than what the employee would have received had they remained on duty for the entire period.

    61. Restriction duty

     

    General

    61.1

    A full time ongoing employee may be directed to be contactable and to be available to perform extra duty outside of ordinary hours of duty.

       

    61.2

    For the purposes of this clause, 'to be contactable and available' means the employee is:

    a. contactable by telephone as required by the direction under clause 61.3; and

    b. is fit, ready and able to return to work within such time as is set out in the written direction under clause 61.3 of being recalled to duty.

       

    61.3

    Payment for restriction duty will only be made where the restriction has been imposed by prior direction in writing by the employee's director.

       

    61.4

    No part time employee will be required to be part of a restriction situation.

       

    61.5

    The ATO will not direct an employee to be in a restriction situation for more than four consecutive weeks except in exceptional circumstances which will be determined in advance and set out in the written direction by the employee's director.

       
     

    Eligibility for payment

    61.6

    Employees whose salary equals or exceeds the minimum salary payable at the EL1 level will not be eligible to receive payment under this clause except where specific approval has been given in writing in exceptional circumstances.

       
     

    Amount to be paid

    61.7

    An employee in a restricted situation will be paid an allowance equal to:

    a. 7.5% of hourly rate of salary for each hour restricted Monday to Friday;

    b. 10% of hourly rate for each hour restricted Saturday and Sunday;

    c. 15% of hourly rate for each hour restricted on public holidays and rostered days off.

       

    61.8

    The allowance is payable for each hour or part hour the employee is restricted.

       

    61.9

    Notwithstanding the provisions of this clause, an employee may be paid at a different rate, determined in advance, having regard to the circumstances of the restriction situation.

       
     

    Salary for restriction duty

    61.10

    Salary includes any allowance paid in the nature of salary. All restriction duty payment calculations will be based on a 36 hour and 45 minute week.

       
     

    When payment is not to be made

    61.11

    Any period for which the employee is entitled to some other penalty payment is not to be included in the period for calculating restriction payments.

       

    61.12

    No payment is to be made for any period that the employee was not contactable or available.

       
     

    Payment if recalled to duty

    61.13

    A restricted employee required to perform duty, but not recalled to work, will be paid overtime subject to a one hour minimum payment.

       

    61.14

    A restricted employee recalled to work, will be paid overtime subject to a three hour minimum payment. The period of overtime will include the time taken to travel to and from the place required to perform the work.

       

    61.15

    A restricted employee will have the reasonable cost of travel to and from work reimbursed on each occasion that they are recalled to work.

       

    61.16

    Emergency duty provisions will not apply if an employee is recalled to duty while restricted.

       

    61.17

    An employee on restriction duty is not to receive greater payments from multiple periods of duty than what the employee would have received had they remained on duty for the entire period.

      Last modified: 02 Dec 2011QC 24167