Over-award payments

There are a number of different reasons for employers to pay an over-award payment.

Most employers who pay an over-award payment do so for a number of different reasons. These may include:
  • an attempt to pay ‘market’ rates to attract or retain quality staff
  • to avoid the administrative hassle of having to calculate extraneous allowances and other payments each week, eg rostered overtime, annual leave loading, meal allowance, special rates, fares and travelling allowance, etc
  • to ‘package’ an employee’s remuneration into an annualised or ‘total’ wage.
The problem for employers is that the courts and industrial tribunals have, on occasion, ordered the employer to pay an employee’s entitlement under the applicable award or agreement, despite the existence of an over-award payment allegedly compensating the employee for certain entitlements. However, there are certain precautions that an employer can make to avoid any double-counting.
 
Overview
 
The inclusion of any payments provided by an industrial instrument under an employee’s total wage or salary may change the nature of these payments to form part of the employee’s ordinary pay. This can mean that any entitlement that is calculated on an employee’s ordinary pay under an award, agreement, National Employment Standards, or a state/territory statute, could change. Compensating for an entitlement under an award or an agreement may not necessarily achieve the purpose the employer had originally intended.
 
For example, annual leave loading is payable under a specific circumstance (ie in addition to an employee’s ordinary pay when taking annual leave). However, many employers have incorporated this entitlement into an employee’s total wage or salary, meaning it is no longer ‘annual leave loading’ because it is now payable every week, regardless of an employee’s absence on paid annual leave.
 
In the absence of a written contract of employment detailing the absorption, the employer is still liable to pay the annual leave loading. Employers in this situation may be exposed to a ‘double-dip’ by their employees. Unless specific reference is made in the employee’s contract of employment, the nature of the loading changes and, subsequently, could form part of the employee’s ordinary pay.
 
Case law
 
The question of over-award payments and the automatic absorption of all other entitlements under the relevant modern award into that amount have received little judicial review. However, a case in point was determined by the Western Australia Supreme Court in James Turner Roofing Pty Ltd v Peters [2003] WASCA 28. In that case, Justice Anderson summarised the principles concerning ‘set-off’ as follows:
  1. If no more appears than that (a) work was done; (b) the work was covered by an award; (c) a wage was paid for that work; then the whole of the amount paid can be credited against the award entitlement for the work whether it arises as ordinary time, overtime, weekend penalty rates or any other monetary entitlement under the award.
  2. However, if the whole or any part of the payment is appropriated by the employer to a particular incident of employment the employer cannot later claim to have that payment applied in satisfaction of his obligation arising from some other incident of the employment. So a payment made specifically for ordinary time worked cannot be applied in satisfaction of an obligation to make a payment in respect of some other incident in employment, such as overtime, holiday pay, clothing or the like even if the payment made for ordinary time was more than the amount due under the award in respect of that ordinary time.
  3. Appropriation of a money payment to a particular incident of employment may be an express or implied and may be a unilateral act of the employer debtor or by agreement express or implied.
  4. A periodic sum paid to an employee as wages is prima facie an appropriation by the employer to all of the wages due for the period whether for ordinary time, overtime, weekend penalty rates or any other monetary entitlement in respect of the time worked. The sum is not deemed to be referable only to ordinary time worked unless specifically allocated to other obligations arising within the employer/employee relationship.
  5. Each case depends on its own facts and is to be resolved according to general principles relating to contracts and to debtors and creditors.
Put it in writing
 
The first question the employer should ask is — what is the over-award payment compensating?
 
This should be clarified when the job is offered to the employee at the time of recruitment. The letter of offer of employment should specifically identify the entitlements compensated for by the over-award payment. The parties may have agreed to certain payments being covered by the over-award payment, however, unless this is detailed in writing, the employer may have difficulty refuting any subsequent claim by an employee before the relevant court that a particular payment has been absorbed into the employee’s ordinary pay. The types of payments which often form part of an over-award payment include: regular rostered overtime, annual leave loading, and ad hoc allowances such as special rates (hot work, cold work, confined space, etc).
 
Overtime becomes over-award payment
 
The payments that constitute part of an employee’s ordinary pay have been determined by courts and tribunals over the years. A matter that involved a large household chemical company and a dispute over an employee’s redundancy payout illustrates the problems faced by employers on this issue. The company was paying a supervisor an ‘overtime allowance’ to compensate for working overtime hours. The case involved a claim by the employee that the ‘allowance’ should have been included in the employee’s redundancy payout and other termination payments. The employer paid the employee entitlements such as redundancy pay, annual leave plus loading and long service leave upon termination of their employment.

The company argued that the allowance related to overtime and, therefore,should not be included in the employee’s ordinary pay. Generally, overtime payments are not included in an employee’s ordinary pay for the purposes of awards or agreements, National Employment Standards, superannuation guarantee, or other state/territory employment legislation, the ‘overtime allowance’ being excluded from these calculations in this case.

The tribunal asked the question: is this allowance intended to apply only in circumstances where the employee works extraordinary hours on an ad hoc basis or is it, in effect, a normal incident of the employee’s remuneration for the performance of their duties so that it becomes a component of the salary package?
 
The tribunal determined the ‘overtime allowance’ was part of the employee’s ordinary pay, consequently the tribunal ordered the company to adjust the employee’s payout with respect to redundancy pay, annual leave and long service leave. The tribunal’s rationale being that the employee received the same amount of remuneration each week, regardless of whether overtime was worked by the employee in a particular week. See: Lesley Crossley v Colgate Palmolive Pty Ltd [1999] NSWIRComm 72 (5 March 1999).
 
National Employment Standards
 
The National Employment Staandards provide a maximum number of weekly work hours of 38 per week, with provision allowing for reasonable additional hours. Employers may be confused whether the additional hours in excess of 38 are regarded as overtime or ordinary hours for the purposes of calculating employment entitlements, or ‘ordinary pay’ under various employment statutes, including annual leave and personal/carer’s leave under the Standard. This will depend on the nature of the payment for additional hours.

An over-award payment which compensates for the payment of overtime and does not relate to the number of overtime hours worked by the employee each pay period would be included in an employee’s ‘base rate of pay’ for the purposes of annual leave and personal/carer’s leave (including compassionate leave), whereas payment which fluctuates based on the number of overtime hours worked each pay period would not be considered part of the base rate of pay, as it is separately identifiable as payment for overtime.
 
Calculation of award provisions
 
Another common issue for employers is whether penalty rates and payments expressed as a percentage of an employee’s ordinary pay are calculated on the employee’s ‘actual rate of pay’ or the appropriate award rate. This will depend on a number of factors. The level of over-award payment would need to be equal to, or greater, than the amount the employee would have received had the entitlements been calculated on the appropriate award rate classification. Where the level of over-award payment does not equal the amount payable under the minimum provisions of the applicable modern award or enterprise agreement, the employer would be in breach of the Fair Work Act, with an employee able to recover any underpayment through the Fair Work Ombudsman.
 
Transitional provisions — absorption
 
The question of absorption of over-award payments in relation to modern awards was determined by Fair Work Australia in its decision Award Modernisation [2009] AIRC 2 September 2009. It was determined that over-award payments could be absorbed. The model clause in modern awards reads: ‘The monetary obligations imposed on employers by this award may be absorbed into over-award payments. Nothing in this award requires an employer to maintain or increase any over-award payments.’ For example, see cl 2.2 of the Manufacturing and Associated Industries and Occupations Award 2010.
 
Fair Work Australia subsequently confirmed that an employer is generally entitled to absorb modern award entitlements into over award payments. See Manufacturing and Associated Industries and Occupations Award 2010 — AMWU v AiGroup — FWAFB 4488.

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