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

25. Public holidays

[Varied by PR747352]

25.1 Public holiday entitlements are provided for in the NES.

25.2 Substitution of certain public holidays by agreement at the enterprise

(a) An employer and employee may agree to substitute another day for a day that would otherwise be a public holiday under the NES.

(b) An employer and employee may agree to substitute another part-day for a part-day that would otherwise be a part-day public holiday under the NES.

25.3 Employees required to work on a public holiday will be paid in accordance with clauses 35.5, 45, 49.3 or 57.

[25.4 deleted by PR747352 ppc14Nov22]

Part 4—Workplace Delegates, Consultation and Dispute Resolution

[Part 4—Consultation and Dispute Resolution renamed by PR774744 from 01Jul24]