Overtime and the difference between reasonable additional hours 

Overtime 
Overtime includes work completed beyond ordinary hours of work, outside agreed number of hours or outside the spread/span of ordinary hours as outlined in the relevant modern award for your industry.

Modern awards are an instrument that operate with the force of legislation and sets the minimum rates of pay and conditions for employees.

Reasonable overtime hours
There are instances where an employer may ask an employee to work reasonable overtime hours. However, in order to satisfy Fair Work requirements, there are a number of factors that must be taken into account in determining whether additional hours are reasonable and these include: 

• any risks to the employee’s health and safety from working the additional hours. For example consistently working additional hours of overtime can lead to fatigue and can increase the risk of accidents occurring in the workplace and contribute to disease. 
• employees personal circumstances, including their family responsibilities
• relevant needs of the workplace
• if the employee is entitled to receive overtime payments or penalty rates for working the extra hours
• if notice was given by the employer of the request/requirement for overtime to be worked by the employee
• usual pattern of work in the industry, or
• if they are paid a higher rate on the understanding that they work some overtime. 

What happens if it goes wrong?
If it is determined by the Fair Work Ombudsman that an employer has unreasonably required an employee to work additional overtime there are serious monetary fines that can be imposed.

In a recent case heard before the Federal Court, an employer was fined a total of $90,000 due to their requirement for an employee to unreasonably work 50 hours per week. This requirement was found to be a contravention of Section 62 of the Fair Work Act 2009, which stipulates that 38 hours is the maximum weekly hours of work. This section of the act imposes a limit on the number of hours an employee may be asked or required to work. 

Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263

Generally, an employer must not request or require a full-time employee to work more than 38 hours in a week, unless the additional hours are considered to be reasonable. 

If an employee voluntarily works additional hours, than an employer will not be in breach of the Act so long as the employer does not request or require that they do so, and as long as the additional hours worked (even if voluntarily) do not make the work unsafe as this would breach work health and safety laws. 

Just a note on wage theft
The Industrial Relations Minister, Grace Grace in 2020 said “that wage theft is endemic across Queensland, affecting 437,000 workers and costing them approximately $1.22 billion in wages and $1.12 billion in unpaid superannuation each year".

Source: Queensland criminalises wage theft (workplaceexpress.com.au) viewed 25/1/23

There was an amendment to the Criminal Code and Other Legislation (Wage Theft) Bill in 2020 to amend section 391 (Definition of stealing) to include a new section 6A, to include the failure to pay an employee.

Section 391 (7) has been amended the relevance for this article is the capture of a broad range of payments and entitlements which include:

• unpaid hours or underpayment of hours
• unpaid penalty rates
• unreasonable deductions
• unpaid superannuation
• withholding entitlements
• underpayment through intentionally misclassifying a worker including wrong award, wrong classification or by ‘sham contracting’ and the misuse of Australian Business Numbers, and
• authorised deductions that have not been applied as agreed

Queensland criminalised wage theft for employers that engage in deliberate wage theft in September 2020.

Additional resources
•    Legislation 
•    Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 

	Workplace Relations Support Workplace Relations Support can assist you with understanding if overtime hours worked may be unreasonable. We can also provide assistance on where to find the applicable overtime rates for your employees. You can contact us via phone (07) 3872 2222 and email support workplacerelations@amaq.com.au.
	Workplace Relations Toolkit Workplace Relations Toolkit subscribers receive complimentary contract drafting from the workplace relations team within their 12 month subscription and free general advice.
	Workplace Relations Consultancy Workplace Relations Comprehensive Consultancy can review current contracts you may already have in place to ensure employers are meeting their obligations with staff work overtime.