General information only — not legal advice. First speak with your employer, then if unsuccessful contact Fair Work or an employment lawyer.
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Taking Time Off Instead of Overtime at a Restaurant — Is 1:1 TOIL Right?

Last updated: March 2026 · MA000119

No — 1 hour of time-and-a-half overtime equals 1.5 hours of TOIL minimum. Hour-for-hour TOIL for overtime hours is underpayment under the Restaurant Industry Award. TOIL must also be agreed in writing and taken within 6 months.

Getting 1 hour off for every 1 hour of overtime? That's not TOIL — that's underpayment.

The rule

Under the Restaurant Industry Award (MA000119), TOIL arrangements must meet all of these requirements:

  • Agreement must be in writing
  • TOIL must be taken at the overtime rate: 1 hour at 1.5× = 1.5 hours TOIL; 1 hour at 2× = 2 hours TOIL
  • TOIL must be taken within 6 months
  • Unused TOIL after 6 months must be paid out at the overtime rate

Hour-for-hour TOIL for overtime work is non-compliant and constitutes underpayment.

What this costs you

The 1:1 TOIL shortfall

  • 1 hour of overtime at 1.5× should = 1.5 hours TOIL
  • 1:1 TOIL gives you only 1 hour off
  • Shortfall: 0.5 hours per overtime hour worked

If you work 4 hours of overtime per week on 1:1 TOIL, you're losing 2 hours of time off every week. Over a year, that's 100+ hours of uncompensated work — equivalent to nearly 3 weeks of full-time pay.

What to check

  • Is there a written TOIL agreement?
  • Is TOIL accrued at the overtime rate (1.5 or 2 hours per overtime hour)?
  • Is TOIL taken within 6 months?
  • Has any unused TOIL been paid out at overtime rates?

Frequently asked questions

Can my employer require me to take TOIL instead of overtime pay?

No. TOIL must be genuinely agreed between the employer and employee. Your employer cannot unilaterally decide you'll take time off instead of being paid overtime. If you don't agree, you're entitled to overtime pay.

Is a verbal agreement to take TOIL sufficient?

No. The agreement to take TOIL must be in writing. A verbal arrangement doesn't meet the award requirements. Without a written agreement, the overtime should have been paid at the overtime rate.

What happens if I don't use my TOIL within 6 months?

Unused TOIL must be paid out at the overtime rate that would have applied when the overtime was worked. Your employer cannot let TOIL accumulate indefinitely — if it's not taken within 6 months, it converts to a payment obligation.

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General information only. Verify at fairwork.gov.au.