Hello,
An employee who works overtime can choose to be paid or to claim it as TOIL/LIL (i.e. for each hour of overtime they work, they get an hour of leave). If they take this leave, it is paid at their ordinary rate of pay. Any untaken TOIL of overtime is paid out upon termination at the overtime rate of pay.
When the employee takes the leave (paid at ordinary rate of pay), is this income considered ordinary time earnings?
I'm conflicted between these two paragraphs of SGR 2009/2:
41. Payments for work performed during hours outside an employee's ordinary hours of work are not OTE.
42. This is so whether the payments are calculated at an hourly rate or the employee gets a specific loading, or an annualised or lump sum component of a total salary package, that is expressly referable to overtime hours as remuneration for overtime hours worked.
and,
32. Subject to the exclusions mentioned at paragraph 34 of this Ruling, salary or wages that an employee receives, at or below his or her normal rate of pay for ordinary hours of work, in respect of periods of paid leave is simply a continuation of his or her ordinary time pay. It is OTE. It does not matter whether the entitlement to take the paid leave accrued gradually over time, arose in a specified circumstance or following a specified event, or was simply granted to the employee in the exercise of the employer's discretion.
Any clarification is appreciated.
Thank you!
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