Reasonable Overtime

What is reasonable overtime?

In Australian employment law, “reasonable overtime” refers to additional work hours considered fair and lawful under Section 62 of the Fair Work Act 2009.

Whether overtime is reasonable depends on several factors, including business needs, the employee’s personal circumstances, the nature of their work, and any associated health and safety risks. Employers can request that employees work extra hours, but only if those requests are reasonable. Employees are not obligated to comply with unreasonable overtime demands.

What makes overtime reasonable?

Section 62 of the Fair Work Act 2009 provides a framework for determining whether overtime is reasonable. These criteria are designed to ensure employees aren’t overburdened and that individual and business needs are both considered. Reasonableness must be assessed case by case, taking the following factors into account:

1. Health and safety

Are the additional hours likely to impact the employee’s physical or mental health? Long hours without adequate rest can lead to fatigue, burnout, or increased accident risk, especially in roles that involve physical labor, operating machinery, or decision-critical work. If the extended hours put an employee’s wellbeing at risk, they’re unlikely to be considered reasonable.

Did you know?

Fatigue from long hours is linked to higher rates of workplace accidents and significant economic losses in Australia.

2. The employee’s personal circumstances

Personal commitments such as childcare, study, or family responsibilities must be considered. For example, expecting a parent to stay late without notice could be unreasonable if it interferes with their caregiving obligations. Reasonableness must reflect the employee’s situation, not just operational convenience.

3. Workplace or business needs

Business demands, such as project deadlines, seasonal peaks, or maintaining essential services, can justify overtime. However, operational needs alone don’t make overtime reasonable. It must be balanced with other factors, particularly the employee’s capacity and consent.

4. Compensation entitlements

Whether the employee is compensated for overtime through penalty rates, time off in lieu, or another arrangement affects whether the request is fair. Asking employees to work extra hours without proper compensation reduces the likelihood of the overtime being viewed as reasonable.

5. Industry work patterns

Customary working patterns in certain industries, like construction, emergency services, or healthcare, typically include longer or irregular hours. While these norms are relevant, they don’t override other considerations like fatigue risk or lack of pay.

6. Amount of notice given

Short-notice overtime requests may be considered unreasonable if they disrupt the employee’s ability to plan or meet personal commitments. Adequate notice allows time for arrangements and reduces the strain on employees.

7. Prior agreement

If the employee has previously agreed to work overtime (through a formal agreement or established practice), this can support the request’s reasonableness. Still, prior agreement doesn’t cancel out the need to assess health, safety, and personal factors each time.

HR tip

Encourage employees to flag overtime concerns early by creating a safe, confidential feedback channel, so HR can identify potential burnout risks before they escalate.

How many hours of overtime is reasonable in Australia?

For full-time employees, the Fair Work Act 2009 sets a 38-hour standard workweek, plus “reasonable additional hours”. What’s “reasonable” depends on the context, but generally, working a few extra hours per week (e.g., two to five hours) may be acceptable if it’s occasional, voluntary, and properly compensated.

However, consistently working well beyond 38 hours, especially without sufficient rest or extra pay, can cross the line into unreasonable territory. Research backs this up: according to the WHO and ILO, working more than 55 hours a week increases the risk of stroke by 35% and heart disease by 17%.

For part-time or casual employees, reasonable overtime should be assessed relative to their usual hours. A part-time employee contracted for 20 hours might reasonably work a few additional hours during peak times, but expecting them to regularly work full-time hours without adjusting their contract may be unreasonable, depending on circumstances.

In all cases, whether additional hours are reasonable will be assessed using the criteria in Section 62 of the Fair Work Act, including personal circumstances, business needs, compensation, and health and safety considerations.

The law in action: Case examples

Example 1: Australasian Meat Industry Employees Union v Dick Stone Pty Ltd

Dick Stone Pty Ltd, a long-standing meat wholesaler, was fined $93,000 for breaching employment law by requiring a worker to perform unreasonable overtime.

The employee, Mr. Samuel Boateng, was issued an employment pack stating his “ordinary hours” were 50 per week, far above the 38-hour statutory maximum. His shifts began at 2:00 a.m. and lasted until 11:30 a.m. Monday through Friday, with additional hours on Saturday. The employer was responsible for proving that these hours were reasonable under Section 62.

The court found they were not, citing health and safety concerns, fatigue risk (given the use of knives), lack of overtime pay, and the employee’s vulnerability as a recent immigrant unfamiliar with Australian laws. The employer was penalized for breaching both the National Employment Standards and the applicable award.

Example 2: Rugg v Commonwealth of Australia as represented by the Department of Finance & Anor

In a high-profile case, Sally Rugg, former Chief of Staff to MP Monique Ryan, challenged the reasonableness of working more than 70 hours per week. She alleged that she faced adverse action after refusing to work excessive hours, despite her contract allowing for “reasonable additional hours”.

The matter was settled outside of court, but it sparked national debate over what “reasonable” overtime looks like, particularly for white-collar and political staffers. The case underscored the risks of relying on vague contract clauses without assessing the actual burden placed on employees.

Example 3: Chin v Visual Thing Australia Pty Ltd [2024] FedCFamC2G 896

Ms. Chin, a full-time creative retouching specialist, was required to work a 40-hour week, above the NES standard. While longer hours were common in her industry, the court found that her employer had not demonstrated why the extra hours were necessary for her role, which didn’t involve managerial duties.

She also wasn’t paid overtime, breaching the applicable award. The court ruled that requiring those additional hours, without justification or compensation, violated Section 62 of the Fair Work Act 2009.

Overtime and HR responsibilities

HR plays a critical role in managing overtime lawfully, fairly, and sustainably. As an HR professional, these are the key responsibilities you should be focusing on:

Track and monitor hours worked to avoid breaching legal limits

HR must implement systems to accurately record hours worked, including overtime, to ensure compliance with the Fair Work Act 2009 and relevant awards or agreements. Regular auditing helps prevent inadvertent breaches and supports pay transparency.

Consult employees before scheduling extra hours

Overtime should never be a surprise. HR must ensure employees are consulted in advance and have the opportunity to accept or refuse additional hours, particularly if the hours may be borderline in terms of reasonableness. Proper consultation supports fairness and reduces dispute risks.

Address health and safety risks of long shifts

HR must assess the impact of extended working hours on employee wellbeing, especially for roles involving physical labor, driving, or critical decision-making. Fatigue management policies and risk assessments should apply to overtime arrangements to meet WHS obligations.

Ensure compliance with awards, enterprise agreements, and contracts

Many modern awards and enterprise agreements have specific rules about overtime rates, rostering, and rest periods. HR must know these instruments and ensure all overtime is managed and paid according to the entitlements.

Maintain clear and up-to-date overtime

HR should develop and regularly update workplace policies on overtime handling, requirements, approval, and compensation. These policies should be communicated clearly to all staff for consistent application.

Train managers on overtime rules and risks

Supervisors are often the ones approving or assigning overtime. HR should equip them with the knowledge to understand what’s considered “reasonable”, how to assess requests, and when to escalate concerns.

Ensure fair and non-discriminatory overtime distribution

Overtime opportunities or burdens shouldn’t fall unfairly on certain groups. HR should monitor patterns to prevent bias, whether intentional or not, and foster a fair and inclusive workplace.

Review trends and address root causes of excessive overtime

If certain teams or individuals are regularly working overtime, HR should investigate why. Is it due to understaffing, poor workload planning, or unrealistic deadlines? Long-term reliance on overtime may indicate deeper operational issues that need to be addressed through workforce planning and process improvement.

HR tip

Include overtime trends in monthly workforce reports to leadership to ensure executive oversight and align resourcing decisions with actual workload data.