TOIL, Overtime and Flexitime: Know Your Rights

Let’s take a refresher on public sector worker entitlements to flexitime, overtime, and time off in lieu (TOIL) of overtime payments for day workers.  

These entitlements should benefit workers, but we often see the Employer manipulating workers and misusing their rights to disadvantage employees.  

Each entitlement is related to the standard hours of work outlined in the relevant award. For TSSA, the standard hours of work are 36.45 hours a week, or 7.21 hours per day.  For HAHSA the standard hours of work are 38 hours a week, or 7.6 hours per day.  Flexitime, TOIL, and overtime, are tools to manage additional work that employees may be required to perform after completing their standard maximum hours of work, to ensure that employees don’t lose out and are fairly compensated for the extra time they give. 

Hours worked must occur during the span of hours. For day workers employed under the Tasmanian State Service Award 2021, this is 7am – 7pm from Monday to Friday. For shift workers, the span of hours workers is not limited to between 7am – 7pm and includes Saturdays, Sundays, and public holidays. If day workers work outside of the span of hours, at the request of their Manager, they are entitled to overtime payment.  

Overtime payment 

Day workers are entitled to overtime payment for time worked in excess of normal ordinary hours or outside of the span of hours, or on time worked on a Saturday, Sunday or public holiday. This applies to workers at a maximum salary point of General Stream Band 8 and Professional Stream Band 4. Currently, there is a cap at these levels, which we are trying to break in our log of claims – we know that there are CPSU members who work a lot of overtime and don’t get compensated because of their classification. 

Time Off In Lieu (TOIL) 

TOIL is an alternative to being paid overtime rates for overtime worked. It should not automatically accrue until a worker has elected to take their overtime as TOIL. This also needs to be approved by the worker’s Manager. If accrued TOIL is not taken within 28 days, it is to be paid out at the overtime rate it accrued at i.e. time and a half. 

If you have TOIL that wasn’t taken within 28 days that you would like to be paid out, click here for a template letter. To have your TOIL paid out as overtime payment is an entitlement, and your Employer can’t refuse it. 

Standard flexitime 

Standard flexitime is a tool that has been hard fought for and won by unions. It is to benefit you first and foremost, not the Employer. Flexitime arrangements allow you to determine your work schedule by choosing when you start and finish work, and when you take breaks. It gives employees autonomy over their work and supports a work-life balance. 

Where there are poor management practices, workers may have trouble accessing flexitime arrangements. We always encourage Managers to speak to the CPSU or their People & Culture Team if they feel uncomfortable about providing their workforce with flexitime entitlements – there may be personal barriers to overcome if Managers haven’t felt personally productive utilising flexitime and they can receive skilling up, or they may need assistance to develop productivity metrics that steer away from unsafe work behaviours like micromanaging. 

If you are utilising flexitime provisions, there are some rules that need to be followed: 

  • You need to work ordinary hours between 7am and 7pm, Monday to Friday. 
  • During 10am to 12pm and 2pm to 4pm absences must be kept to a minimum. This means absences can occur from time to time, but generally employees need to attend duties during those hours. 
  • You cannot work more than 10 hours on any given day. 
  • No more than 10 hours in credit or debit can be carried forward from one 4-week cycle to the next. 

If you work in excess of your standard hours per day and this is required by your Manager, and you don’t have a flexitime arrangement in place, that needs to be paid as overtime. 

How flexitime operates can differ between agencies, as some agencies the Department of Natural Resources and Environment Tasmania have their own flexitime policies. Check for any policies on your intranet and if you have concerns that they – or the way Managers are overseeing flexitime – are inconsistent with the Award provision, get in touch with the CPSU. 

Health and Human Services Award

For workers employed under the Health and Human Services Award the standard hours of work for day workers are between 7am to 5.30pm, Monday to Friday. Any work performed outside of these hours is to be paid at the appropriate overtime rate. The spread of hours can be altered between 6am and 7pm through mutual agreement between the Employer, affected employee or employees, and the relevant union. It cannot be directed by the Employer without employee and union consent.

For shift workers under HAHSA the number of ordinary hours of work performed are not to exceed eight in one day, 48 in any one week, 88 in a fortnight, or 152 hours in a 28-day period. This may exclude workers under an industrial agreement to allow for 12-hour shift arrangements.

Unlike the TSSA, HAHSA does not contain provisions for flexitime. HAHSA workers are entitled to overtime, TOIL, and to enter workplace flexibility arrangements to promote a healthy work-life balance. Contact the CPSU with your query or concern so that we can provide you correct advice for your situation.

If you are a shift worker and want to check your entitlements or are concerned that you might be being disadvantaged, contact the CPSU’s  Member Advice & Support Team at CPSUDirect@tas.cpsu.com.au or call 6234 1708. 

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