we have teminated an employee in November 2009 and 2 months…

DearCustomer

Thank you for your further reply.

The Metal, Engineering and Associated Industries Award 1998 does make provision for overtime (herein referred to as the "Award").

Part 6.1 of the Award deals with ordinary hours, with some reference to overtime. Not all of what is set out from the Award will be relevant to your situation, but has been included as it is part of a section.

It provides, in part, as follows;

"6.1.1 Ordinary Hours of Work - Day Workers

6.1.1(a) Subject to subclause 6.1.4, the ordinary hours of work for day workers are to be an average of 38 per week but not exceeding 152 hours in 28 days.

6.1.1(b) The ordinary hours of work may be worked on any day or all of the days of the week, Monday to Friday. The days on which ordinary hours are worked may include Saturday and Sunday subject to agreement between the employer and the majority of employees concerned. Agreement in this respect may also be reached between the employer and an individual employee.

6.1.1(c) The ordinary hours of work are to be worked continuously, except for meal breaks, at the discretion of the employer between 6.00 am and 6.00 pm. The spread of hours (ie. 6.00am to 6.00 pm) may be altered by up to one hour at either end of the spread, by agreement between an employer and the majority of employees concerned or in appropriate circumstances, between the employer and an individual employee.

6.1.1(d) Any work performed outside the spread of hours is to be paid for at overtime rates. However, any work performed by an employee prior to the spread of hours which is continuous with ordinary hours for the purpose, for example, of getting the plant in a state of readiness for production work is to be regarded as part of the 38 ordinary hours of work.

6.1.1(e) Where agreement is reached in accordance with 6.1.1(b) the minimum rate to be paid for a day worker for ordinary time worked between midnight on Friday and midnight on Saturday shall be time and a half.

6.1.1(f) Where agreement is reached in accordance with 6.1.1(b) the minimum rate to be paid for a day worker for ordinary time worked between midnight on Saturday and midnight on Sunday shall be double time."

If the employee at any time took time off work, then the following provision deals with "make up time".

6.1.6 Make Up Time

"6.1.6(a) An employee may elect, with the consent of the employer, to work 'make up time' under which the employee takes time off during ordinary hours, and works those hours at a later time, during the spread of ordinary hours provided in the award."

Whether your employee did so, is a matter for your records.

Part 6.4 of the Award deals with overtime. It provides that overtime is to be paid.

6.4.2 Requirement to Work Reasonable Overtime

[Pt I:Pt 6:6.4.2 substituted by PR923084 ppc 29Oct02]

6.4.2(a) Subject to clause 6.4.2(b) an employer may require an employee to work reasonable overtime at overtime rates.

6.4.2(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:
(i) any risk to employee health and safety;

(ii) the employee's personal circumstances including any family responsibilities;

(iii) the needs of the workplace or enterprise;

(iv) the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and

(v) any other relevant matter.

6.4.3 One in, All in does not Apply

The assignment of overtime by an employer to an employee is to be based on specific work requirements and the practice of "one in, all in" overtime must not apply."

Where the employee was on stand by ready to work overtime (as you indicated he was required to do from time to time, and whilst he was still at the premises from his normal working hours, the following provision called "Standying By" shall apply;

"6.4.6 Standing By

Subject to any custom prevailing at an enterprise, where an employee is required regularly to hold himself or herself in readiness to work after ordinary hours, the employee is to be paid standing by time at the employee's ordinary rate of pay for the time he or she is standing by."

6.4 OVERTIME

Summary

Overtime is payable for work done outside the ordinary hours of work. Generally speaking, the overtime rate is time and a half for the first three hours and double time thereafter. Continuous shift workers are entitled to double time for all overtime.

Employees are required to work a reasonable amount of overtime. Minimum payments are prescribed for overtime work on Saturday, Sunday and Public Holidays.

Employees are required to have a rest period normally between work on successive days.

Provision is made for employees being called back after leaving the premises and for standing by for callback.

Meal breaks and meal allowances are also dealt with in this clause.

6.4.1 Payment for Working Overtime

6.4.1(a) Except as provided for in 6.4.1(d), 6.4.1(e), 6.4.8 and 6.4.9, for all work done outside ordinary hours on any day or shift (as defined in subclauses 6.1.1, 6.1.2 and 6.1.3) the overtime rates of pay are time and a half for the first three hours and double time thereafter until the completion of the overtime work. For continuous shift workers the rate for working overtime is double time.

6.4.1(b) For the purposes of this clause "ordinary hours" means the hours worked in an enterprise, fixed in accordance with clause 6.1 of this award.

6.4.1(c) The hourly rate, when computing overtime, is to be determined by dividing the appropriate weekly rate by 38, even in cases when an employee works more than 38 ordinary hours in a week.

6.4.1(d) (i) An employee may elect, with the consent of the employer, to take time off in lieu of payment for overtime at a time or times agreed with the employer.

(ii) Overtime taken as time off during ordinary time hours shall be taken at the ordinary time rate, that is an hour for each hour worked.

(iii) An employer shall, if requested by an employee, provide payment, at the rate provided for the payment of overtime in the award, for any overtime worked under paragraph (i) of this subclause where such time has not been taken within four weeks of accrual.

[Pt I:Pt 6:6.4.1(e) corrected by Q2704 from 01Jul98]

6.4.1(e) When not less than 7 hours 36 minutes notice has been given to the employer by a relief shiftworker that he or she will be absent from work and the shiftworker whom that person should relieve is not relieved and is required to continue work on his or her rostered day off the unrelieved employee shall be paid double time.

6.4.1(f) In computing overtime each day's work shall stand alone.

6.4.2 Requirement to Work Reasonable Overtime

[Pt I:Pt 6:6.4.2 substituted by PR923084 ppc 29Oct02]

6.4.2(a) Subject to clause 6.4.2(b) an employer may require an employee to work reasonable overtime at overtime rates.

6.4.2(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable having regard to:
(i) any risk to employee health and safety;

(ii) the employee's personal circumstances including any family responsibilities;

(iii) the needs of the workplace or enterprise;

(iv) the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and

(v) any other relevant matter.

6.4.3 One in, All in does not Apply

The assignment of overtime by an employer to an employee is to be based on specific work requirements and the practice of "one in, all in" overtime must not apply.

6.4.4 Rest Period after Overtime

6.4.4(a) When overtime work is necessary it must, wherever reasonably practicable, be so arranged that employees have at least 10 consecutive hours off duty between the work of successive working days.

6.4.4(b) An employee (other than a casual employee) who works so much overtime between the termination of his or her ordinary work on one day and the commencement of their ordinary work on the next day that the employee has not had at least 10 consecutive hours off duty between those times must, subject to this subclause, be released after completion of the overtime until the employee has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during such absence.

6.4.4(c) If on the instructions of the employer an employee resumes or continues work without having had the 10 consecutive hours off duty the employee must be paid at double rates until he or she is released from duty for such period. The employee is then entitled to be absent until he or she has had 10 consecutive hours off duty without loss of pay for ordinary working time occurring during the absence.

6.4.4(d) By agreement between the employer and individual employee, the 10 hour break provided for in this clause may be reduced to a period no less than 8 hours.
6.4.4(e) The provisions of this subclause will apply in the case of shift workers as if eight hours were substituted for 10 hours when overtime is worked:

(i) for the purpose of changing shift rosters; or

(ii) where a shift worker does not report for duty and a day worker or a shift worker is required to replace the shift worker; or

(iii) where a shift is worked by arrangement between the employees themselves.

6.4.5 Call Back

[Pt I:Pt 6:6.4.5 corrected by Q2704 from 01Jul98]

An employee recalled to work overtime after leaving the employer's enterprise (whether notified before or after leaving the enterprise) is to be paid for a minimum of four hours work at the rate of time and one half for the first three hours and double time thereafter (or double time for the full period for continuous shift workers). There are a number of conditions which apply to this provision:

6.4.5(a) Where an employee is required to regularly hold himself or herself in readiness for a call back he or she will be paid for a minimum of three hours work at the appropriate overtime rate. This is subject to 6.4.6 which deals with the conditions for standing by.

6.4.5(b) If the employee is recalled on more than one occasion between the termination of their ordinary work on one day and the commencement of their ordinary work on the next ordinary working day he or she shall be entitled to the three or four hour minimum overtime payment provided for in this subclause for each call back. However, in such circumstances, it is only the time which is actually worked during the previous call or calls which is to be taken into account when determining the overtime rate for subsequent calls.

6.4.5(c) Except in the case of unforeseen circumstances arising, an employee will not be required to work the full three or four hours as the case may be if the job he or she was recalled to perform is completed within a shorter period.

6.4.5(d) This subclause does not apply in cases where it is customary for an employee to return to the enterprise to perform a specific job outside the employee's ordinary working hours or where the overtime is continuous (subject to a meal break) with the commencement or completion of ordinary working time.
6.4.5(e) Overtime worked in the circumstances specified in this subclause is not to be regarded as overtime for the purpose of 6.4.4, Rest Periods After Overtime, when the actual time worked is less than three hours on the call back or on each call back.

6.4.6 Standing By

Subject to any custom prevailing at an enterprise, where an employee is required regularly to hold himself or herself in readiness to work after ordinary hours, the employee is to be paid standing by time at the employee's ordinary rate of pay for the time he or she is standing by.

6.4.7 Saturday Work

A day worker required to work overtime on a Saturday shall be afforded at least four hours work or paid for four hours at the rate of time and one half for the first three hours and double time thereafter, except where the overtime is continuous with overtime commenced on the previous day.

6.4.8 Sunday Work

Employees required to work overtime on Sundays shall be paid for a minimum of three hours work at double time. The double time is to be paid until the employee is relieved from duty.

6.4.9 Public Holiday Work

Refer to 7.5.2 to determine the pay entitlements of persons who work overtime on a public holiday

6.4.10 Rest Break

[Pt I:Pt 6:6.4.10(a) corrected by Q2704 from 01Jul98]

6.4.10(a) An employee working overtime must be allowed a rest break of 20 minutes without deduction of pay after each four hours of overtime worked if the employee is to continue work after the rest break.

6.4.10(b) Where a day worker is required to work overtime on a Saturday, Sunday or Public Holiday or on a rostered day off, the first rest break will be paid at the employee's ordinary rate of pay.
[Pt I:Pt 6:6.4.10(c) corrected by Q2704 from 01Jul98]

6.4.10(c) Where overtime is to be worked immediately after the completion of ordinary work on a day or shift and the period of overtime is to be more than one and a half hours, an employee, before starting the overtime is entitled to a rest break of 20 minutes to be paid at ordinary rates.

6.4.10(d) An employer and employee may agree to any variation of this subclause to meet the circumstances of the work in hand provided that the employer is not required to make any payment in excess of or less than what would otherwise be required under this subclause.

The only way that you could have avoided paying overtime is by entering into an Enterprise Agreement or an Employment Contract in writing.

As you are now being pursued by Fair Work, you may want to reach a compromise with this former employee, as although you say there was a verbal agreement that no overtime would be paid, Fair Work may not agree and may award the full amount that the employee is seeking.

If the employee is prepared to mediate, as you have indicated, you may want to offer him something less than his full claim, maintaining that he had been paid a higher hourly rate than the award provided.

A copy of the Award can be seen at the http://www.cwuvic.asn.au/MetalEng.html

In that regard, even though it is a 2006 version, the principles will be the same.

I wish you well. If you have any other questions, please let me know. Otherwise, please don't forget to press the "Accept" button upon receiving this answer to your enquiry.

Sincerely,

Mary A.