When is an overtime request considered unreasonable?
In brief: as an employer you should be aware of what is considered a reasonable overtime request and should ensure that you are in compliance with the Fair Work Act 2009 and the National Employment Standards (NES). The NES sets the minimum standard for overtime in Australia. It is important to note that these are the minimum requirements and some awards or enterprise agreements may provide for more favourable conditions for overtime.
Contact us for legal advice if you are unsure about your obligations regarding overtime.
Reasonable overtime refers to the amount of overtime that is considered reasonable and acceptable for an employee to work, based on the specific circumstances of their job and the needs of the employer.
The Fair Work Act and the National Employment Standards (NES) in Australia provide a framework for what is considered reasonable overtime, but the exact definition of reasonable overtime can vary depending on the specific industry, profession and employer.
Generally, reasonable overtime is considered to be occasional and is not an ongoing part of an employee's work schedule. An employee should not be expected to work unreasonable amounts of overtime, as it could negatively affect their health and well-being, and compromise their ability to perform their duties.
A recent example of penalties imposed for severe breaches of employee entitlements
How do you mitigate the risks to avoid severe penalties like the $90,000+ fine that an Australian Meat Industry employer recently was instructed to pay in penalties to the employee after the Federal Court found it was in contravention of section 62 of the Fair Work Act 2009. [Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263]
The employer required an employee to work 50 hours per week instead of the stipulated 38 maximum hours of work.
The employer not only failed to pay overtime rates, they also had their employee wrongly classified under the Meat Industry Award 2010.
The employer also failed to provide the employee with a copy of the Fair Work Information Statement (FWIS), copies of the Award and the National Employment Standards and failed to post the work roster.
What do you need to know?
To avoid wage theft employers should be familiar with their employees rights under the Fair Work Act and the National Employment Standards (NES).
You have a responsibility to also ensure that you are paying the correct award rates - Fair Work Ombudsman – Find your award
Be aware of the amount of overtime you can request of your employee and pay the correct rate for overtime work. It's important to note that certain industries and professions may have different regulations and agreements regarding working hours and overtime pay.
What can we learn from this example?
If you request additional hours of work, ensure that you are not in breach of the Fair Work Act. An employer will not be in breach of the Fair Work Act where an employee voluntarily works additional hours, so long as the employer does not request or require that they do so, and as long as the additional hours worked (even voluntarily) do not make the work unsafe (this would involve a breach of Australia’s various work health and safety laws).
If you wish to request or require an employee to perform additional hours, it is important to consider the factors listed in section 62(3) of the Fair Work Act, and to consult with your employees.
Employers are responsible for ensuring that the overtime they request is reasonable and that employees are not being asked to work excessive or unreasonable hours. If you are concerned that the overtime you are asking your employees to work is unreasonable or are unsure of award rates, you can seek advice from our expert employment lawyers – contact us