Time Off Instead of Payment for Overtime (TOIL)



AFEI Circular No. 386/2016
21 December 2016

Dry Cleaning and Laundry Industry Award 2010
Significant Decision: Variations to Overtime Provisions in Modern Awards – Time Off Instead of Payment for Overtime (TOIL)
On 14 December 2016 the Fair Work Commission (Commission) issued a final determination which varies the Dry Cleaning and Laundry Industry Award 2010 (Award) to delete the current TOIL provision, clause 22.2, and insert a modified version of the Commission’s model term for TOIL.

What does the replacement TOIL mean?
Prior to the variation the Award already provided for an employee and employer to agree in writing to the employee taking time off instead of being paid for a particular amount of overtime that had been worked by the employee. The new TOIL provision continues to provide for these arrangements (including that the agreement must be in writing) but also sets out further clarifications and conditions for TOIL including:
• the period of time off an employee is entitled to take is equivalent to the overtime payment that would have been made (e.g. where an employee who worked 2 hours overtime at time and a half is entitled to take 3 hours as time off);
• the time off must be taken within the period of 6 months after the overtime is worked;
• if the employee requests at any time to be paid for overtime covered by an agreement rather than take this as time off, the employer must make the payment in the next pay period at the applicable overtime rate;
• if agreed time off has not been taken within a period of 6 months, the employer must make payment for the overtime in the next pay period, at the applicable overtime rate;
• an employer must not exert undue influence or undue pressure on an employee in relation to making (or not making) an agreement to take time off instead of payment for overtime.

The variation includes a note that if the request for time off instead of payment for working overtime is a request under section 65 of the Fair Work Act 2009 (Cth) (Act) for flexible working arrangements, an employer may only refuse such request on reasonable business grounds. Where an employer agrees to such a request, the agreement is subject to the same conditions outlined above.
The variation also includes a note that, 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 concerning the above matters.

When do the variations commence?
The variation takes effect from the commencement of the first full pay period on or after 14 December 2016.

Please follow the link to the updated version of this Award: Dry Cleaning and Laundry Industry Award 2010