What constitutes reasonable overtime under employment law standards? Deadlines loom, projects snowball, and suddenly those extra hours seem unavoidable. But in Australia, with its emphasis on work-life balance, the line between fair overtime and an unreasonable expectation can get blurry.
Overtime refers to the hours of work performed beyond an employee’s ordinary hours of work, outside of the employee’s agreed number of hours, or outside their typical shift period. The employee’s registered agreement, enterprise agreement or award sets out overtime rates.
In Australia, the standard full-time workweek is 38 hours. So, any hours you work past that 38-hour mark would be overtime. However, it’s more complex than just exceeding 38 hours total. You can calculate overtime in different ways depending on your specific work situation:
- Daily overtime: If your regular workday is 8 hours, any hours you work past 8 hours in a single day would be daily overtime.
- Weekly overtime: This applies to employees whose workweek is spread over more than five days. For example, if you work 39 hours over four days, the extra hour would be the weekly overtime.
- Fortnightly or bi-weekly overtime: In some cases, we may calculate overtime based on two weeks rather than a single week.
Read on to know more about reasonable overtime.
What Does the Law Say?
Section 62 of the Fair Work Act 2009 sets the ground rules for reasonable overtime in Australia, ensuring a healthy balance between employee well-being and business needs. Here’s a breakdown of the key points:
Average Weekly Hours:
- Full-time employees: Can’t be required to work more than 38 hours per week unless the extra hours are deemed reasonable.
- Part-time employees: Can’t be required to work more than their agreed-upon ordinary hours, or 38 hours, whichever is less.
You have the right to refuse overtime if it’s deemed unreasonable based on various factors like:
- Health and safety risks: Excessive hours could compromise your well-being.
- Personal or particular circumstances: Family commitments or other family responsibilities deserve consideration.
- Workplace needs: Is the overtime truly essential for the business operation?
- Compensation: Are you receiving proper overtime pay or penalty rates for extra hours?
- Notice: Did your employer give you adequate notice about the overtime requirement?
These factors, along with usual work patterns in the industry, the employee’s role and responsibility level, and any averaging arrangements, are all weighed in to determine if overtime is reasonable. Authorised leave or absences, whether paid or unpaid, count towards your weekly working hours for overtime calculations.
Case Study About Reasonable Overtime
In the Meat Industry Employees Union v Dick Stone Pty Ltd case [2022], a 50-hour workweek contract was deemed unreasonable despite employment agreement and above-award pay. The court ruled this based on:
- Missing overtime payments: Even with a higher rate, the contract didn’t clearly outline overtime compensation, making it unclear if the extra pay offset overtime hours.
- Employee health and safety risks: The physically demanding work with knives posed a safety risk with the long hours.
- Job role mismatch: The employee’s non-managerial role didn’t justify the extra 12 hours per week.
This case about reasonable overtime highlights the importance of clear reasonable overtime policies considering both compensation and employee well-being, even when contracts stipulate longer hours.
Working Out Overtime Payments With Your Employer
Working out overtime payment agreements with your employer can be a complex process. However, there are several steps you can take to ensure that you and your employer are on the same page when it comes to overtime pay. Here are some tips to help you work out overtime payment agreements with your employer:
1. Know your rights: It is important to understand your rights when it comes to reasonable overtime pay. In Australia, overtime is regulated under the National Employment Standards and the Fair Work Act 2009 (Cth), and breaches of these responsibilities carry penalties. The Fair Work Ombudsman defines the maximum regular hours for a full-time employee as 38 hours per week.
It defines overtime as work beyond a full-time employee’s ordinary hours of work. Employers can only request or require employees to work more than their maximum weekly hours where the additional hours are reasonable. Employees can refuse to work overtime that unreasonably exceeds the maximum weekly hours.
2. Check your employment contract: Your employment contract should outline your overtime pay entitlements. If you are unsure about your entitlements, speak to your employer or HR representative.
Additional Tips
3. Understand how overtime is calculated: Reasonable overtime rates are usually set out in the employee’s registered agreement, enterprise agreement, or award. Overtime is payable as prescribed by an award, registered agreement, or employment contract.
However, an employer may not have to pay extra for ‘reasonable’ overtime if the employee is paid a higher salary. Some awards, registered agreements, or employment contracts may allow an employee to take paid time off instead of overtime pay. This is commonly known as ‘time off in lieu’.
4. Negotiate with your employer: If you feel that your overtime pay entitlements are not fair, you can negotiate with your employer. It is important to approach the negotiation professionally and respectfully. You may want to consider seeking advice from a union or employment lawyer.
5. Keep accurate records: It is important to keep accurate records of the hours you work, including any overtime. This will help you to ensure that you receive correct payment and can be used as evidence if there is a dispute.
Our Employment Lawyers
Have you faced excessive, unreasonable overtime that threatens your health, well-being, and legal rights? If so, you don’t have to face it alone. At JB Solicitors, we champion employee rights and our team aims to secure fair compensation for those facing unfair work practices. Our team of experienced employment lawyers can help you:
- Evaluate both the employee and the employer’s overtime pay disputes
- Assess the employee’s personal circumstances under the Fair Work Act; and
- Build a strong defence against unreasonable demands and any other relevant matter
Whether it’s negotiating better work arrangements, pursuing unfair dismissal claims, or seeking compensation for work health and safety violations, we’re here to fight for your rightful balance between professional dedication and personal well-being.
Contact JB Solicitors today for a confidential consultation about reasonable overtime matters.
