Substantial changes to overtime / TOIL – Pastoral Award 2010
As of 27 November 2017, the Pastoral Award 2010 has been varied and substantial changes have been made to the previous provisions relating to overtime and time off in lieu (TOIL or ‘banked hours’).
As of the first pay period on or after 27 November 2017, the following applies:
- A formal written ‘Agreement’ must be entered into if employers wish to take advantage of provisions in the award relating to time off instead of being paid for overtime worked (TOIL) – see below for a template Agreement
- The ‘Agreement’ must be kept as an employee record.
- All ‘Agreements’ to provide time off instead of payment for overtime must specify as follows:–
- That the employer and the employee agree that the employee may take time off instead of being paid for overtime;
- That all time off must be taken within 6 months of the overtime being worked at times agreed to by the employer and the employee;
- That if time off is not taken within 6 months of the overtime being worked, the employer must pay the employee, in the next pay period for the accrued hours at the rate that applied at the time the overtime was worked unless the employer has agreed to pay out the accrued overtime earlier;
- That the ‘Agreement’ can be terminated by either the employer or the employee at any time by notice in writing;
- That overtime worked after the ‘Agreement’ is terminated will be paid at the overtime rate applicable to the overtime when worked.
- The period of time that the employee is entitled to take off work is equal to the number of hours worked or ‘hour for hour’ – (not overtime rates);
- Accrued overtime paid out on termination of employment must be paid at the overtime rates which applied at the time the overtime was worked – not hour for hour.
- Employers MUST keep records of:
- the number of overtime hours worked;
- when those hours were worked, and
- an updated record of the employee’s overtime balance (banked hours);
- Employers must not exert undue influence or pressure on an employee to make or not to make an agreement to take time off instead of overtime.
NOTE 1: This decision and the variation to the award underline the importance of keeping accurate records of hours worked. In particular, it will be important to record which hours attract the double time penalty for Sunday work which only applies once 152 hours have been worked in a 4-week period.
The Pastoral Award 2010 provides a pro forma “Agreement” in Schedule G at the end of the award – available here
Whilst it is not essential that the pro forma ‘Agreement’ be used, (the Award provides that an exchange of emails or other electronic means can be used instead) it is strongly recommended that employers make an electronic version of the Schedule G and use it to ensure compliance.
The website will be updated to reflect these changes (which will be clearly indicated).