35. Overtime and penalty rates

[Varied by PR723940, PR763232]

35.1 All time worked by an employee in excess of the ordinary hours in clause 34—Ordinary hours of work and rostering will be regarded as overtime.

[35.2 varied by PR723940 ppc 20Nov20]

35.2 The rate of pay for overtime for a farm and livestock hand will be:

For overtime worked | Overtime rateFull-time and part-time employees % ordinary hourly rate | Overtime rateCasual employees % of ordinary hourly rate

Monday to Saturday | 150 | 175

Sunday—feeding and watering stock | 150 | 175

Sunday—other than feeding and watering stock | 200 | 225

[Note inserted by PR723940 ppc 20Nov20]

NOTE: The overtime rates for casual employees have been calculated by adding the casual loading prescribed by clause 11.3(a)(ii) to the overtime rates for full-time and part-time employees prescribed by clause 35.2.

35.3 No employee will be entitled to payment for overtime, or equivalent time off instead, unless:

(a) the employee makes a claim to the employer or their authorised representative either within 2 weeks after the overtime is alleged to have been performed; or

(b) by the next date of payment of the employee’s wages,

whichever is the later.

35.4 Overtime and public holiday rates are calculated on the ordinary hourly rate before any deduction is made for keep.

35.5 Public holidays

A farm and livestock hand required to work on a public holiday will be paid 200% of the ordinary hourly rate.

35.6 Time off instead of payment for overtime

(a) An employee and employer may agree in writing to the employee taking time off instead of being paid for all overtime that is worked by the employee under this agreement.

(b) An agreement made under clause 35.6 will remain in place unless the agreement is terminated. The agreement can be terminated by the employer or employee at any time by notice in writing.

(c) An agreement made under clause 35.6 must be in writing and must state each of the following:

(i) that the employer and employee agree that the employee may take time off instead of being paid for the overtime;

(ii) that the agreement can be terminated at any time by notice in writing;

(iii) that overtime worked after the agreement is terminated will be paid at the overtime rate applicable to the overtime when worked;

(iv) that time off instead of overtime must be taken within 6 months of it being worked, at a time or times agreed by the employee and employer;

(v) that, if time off is not taken as mentioned in 35.6(c)(iv), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked.

NOTE: An example of the type of agreement required by clause 35.6 is set out at Schedule E—Agreement for time off instead of payment for overtime. There is no requirement to use the form of agreement set out at Schedule E—Agreement for time off instead of payment for overtime. An agreement under clause 35.6 can also be made by an exchange of emails between the employee and employer, or by other electronic means.

(d) The period of time off that an employee is entitled to take is the same as the number of overtime hours worked.

EXAMPLE: By making an agreement under clause 35.6 an employee who worked 2 overtime hours is entitled to 2 hours’ time off.

(e) Time off must be taken:

(i) within the period of 6 months after the overtime is worked; and

(ii) at a time or times within that period of 6 months agreed by the employee and employer.

(f) If time off for overtime that has been worked is not taken within the period of 6 months mentioned in clause 35.6(e), the employer must pay the employee for the overtime, in the next pay period following those 6 months, at the overtime rate applicable to the overtime when worked unless the employer agrees to pay out the accrued overtime earlier.

(g) The employer must keep a copy of any agreement under clause 35.6 as an employee record.

(h) The employer must keep a record of the number of overtime hours worked by the employee, when those hours were worked and an updated record of the employee’s time off instead of payment for overtime balance.

(i) 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 instead of payment for overtime.

(j) An employee may, under section 65 of the Act, request to take time off, at a time or times specified in the request or to be subsequently agreed by the employer and the employee, instead of being paid for overtime worked by the employee. If the employer agrees to the request then clause 35.6 will apply, including the requirement for a written agreement under clause 35.6(c) for overtime that has been worked.

[Note varied by PR763232 ppc 01Aug23]

NOTE: If an employee makes a request under section 65 of the Act for a change in working arrangements, the employer may only refuse that request on reasonable business grounds (see section 65A(3) of the Act).

(k) If, on the termination of the employee’s employment, time off for overtime worked by the employee to which clause 35.6 applies has not been taken, the employer must pay the employee for the overtime at the overtime rate applicable to the overtime when worked.

NOTE: Under section 345(1) of the Act, a person must not knowingly or recklessly make a false or misleading representation about the workplace rights of another person under clause 35.6.

Part 7—Pig Breeding and Raising

10. Part-time employees

10.1 A part-time employee is an employee who:

(a) is engaged to work less than an average of 38 hours per week over a 4 week period;

(b) has reasonably predictable hours of work; and

(c) receives on a pro rata basis, equivalent pay and conditions to those of full-time employees who do the same kind of work.

10.2 At the time of engagement the employer and the part-time employee will agree in writing on a regular pattern of work, specifying at least:

(a) the hours worked each day;

(b) which days of the week the employee will work; and

(c) the actual starting and finishing times each day.

10.3 Changes in hours may only be made by agreement in writing between the employer and employee. Any agreed variation to the regular pattern of work will be recorded in writing.

10.4 All time worked in excess of the hours mutually arranged will be overtime and paid for at the appropriate overtime rate.

10.5 A part-time employee employed under the provisions of clause 10 must be paid for ordinary hours worked at the ordinary hourly rate prescribed for the class of work performed.

10.6 Minimum engagement

Subject to clause 10.7, an employer is required to roster a part-time employee for a minimum of 3 consecutive hours on any shift.

10.7 An employer is only required to roster a part-time employee for a minimum of 2 consecutive hours on any shift if all of the following apply:

(a) the employee is engaged to perform the work of a dairy operator; and

(b) the employee is 18 years of age or younger; and

(c) the employee is a full-time secondary school student.

11. Casual employees

[Varied by PR723940, PR734194, PR777262]

[11.1 deleted by PR734194 from 27Sep21]

[11.2 deleted by PR734194 from 27Sep21]

[11.3 renumbered as 11.1 by PR734194 from 27Sep21]

11.1 An employer when engaging a casual must inform the employee that they are employed as a casual, stating:

(a) by whom the employee is employed;

[11.1(b) deleted by PR734194 from 27Sep21]

[11.1(c) renumbered as 11.1(b) by PR734194 from 27Sep21]

(b) their classification level; and

[11.1(d) renumbered as 11.1(c) by PR734194 from 27Sep21]

(c) their rate of pay.

11.2 Casual pieceworkers

[11.4 renumbered as 11.2 by PR734194 from 27Sep21]

(a) Shearers, Crutchers and Woolpressers engaged as casual pieceworkers will be paid piecework rates in accordance with Part 9—Shearing Operations.

(b) For the purpose of the NES, the base rate of pay for a pieceworker is the base rate of pay as defined in the NES.

(c) For the purpose of the NES, the full rate of pay for a pieceworker is the full rate of pay as defined in the NES.

11.3 Casual loading

[11.5 renumbered as 11.3 by PR734194 from 27Sep21]

[11.3(a) varied by PR723940 ppc 20Nov20]

(a) For each ordinary hour worked a casual employee, other than a casual pieceworker, must be paid:

(i) the ordinary hourly rate prescribed for the class of work performed; and

(ii) a loading of 25% of the ordinary hourly rate.

(b) The casual loading is paid instead of annual leave, personal/carer’s leave, notice of termination, redundancy benefits and the other attributes of full-time or part-time employment.

[11.3(c) inserted by PR723940 ppc 20Nov20]

(c) When a casual employee works overtime, they must be paid the overtime rates in clauses 35.2, 43.2, and 49.1(b).

[11.6 renumbered as 11.4 by PR734194 from 27Sep21]

11.4 Casual employees must be paid at the termination of each engagement but may agree to be paid weekly or fortnightly.

11.5 Minimum engagement

[11.7 renumbered as 11.5 by PR734194 from 27Sep21]

(a) Subject to clause 11.5(b), an employer must pay a casual employee, other than a casual pieceworker, for a minimum of 3 hours’ work at the appropriate rate for each occasion on which the employee is required to attend for work, even if the employee is only required to work for a shorter time.

(b) An employer is only required to pay a casual employee for a minimum of 2 hours’ work if all of the following apply:

(i) the employee is engaged to perform the work of a dairy operator; and

(ii) the employee is aged 18 years of age or younger; and

(iii) the employee is a full-time secondary school student.

11.6 Changes to casual employment status

[New 11.6 inserted by PR734194; renamed and substituted by PR777262 from 27Aug24]

A pathway for employees to change from casual employment to full-time or part-time employment is provided for in the NES. See sections 66A to 66MA of the Act.

NOTE: Disputes about changes to casual employment status may be dealt with under sections 66M and 66MA of the Act and/or under clause 28—Dispute resolution.

[11.8 deleted by PR734194 from 27Sep21]

34. Ordinary hours of work and rostering

34.1 The average ordinary working hours for a farm and livestock hand will be fixed by agreement between the employer and the employees but will not exceed an average of 38 hours per week over a 4 week period.

34.2 The ordinary hours of work of farm and livestock hands (other than station cooks) will not exceed 152 hours in any consecutive period of 4 weeks.

34.3 Station cooks

(a) A cook who is required to work for more than 5.5 days in any one week will be paid, in addition to the weekly wage of this award, the following overtime rates:

(i) for work on 6 full days—an amount of 3/22nds of the appropriate weekly rate;

(ii) for work on 6 full days and one half day—an amount equal to 3/11ths of the appropriate weekly rate; or

(iii) for work on 7 full days—an amount equal to 9/22nds of the appropriate weekly rate.

(b) No overtime will be worked nor will an employee perform work on the employee’s day and/or half day off without the permission of or under the instructions of the employer or their authorised representative.