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As an employer, you may face situations where you need or expect your employees to work more than their usual hours. For example, you might need to meet an urgent deadline for an important project or prepare for the launch of an upcoming business event. In these circumstances, you may need to pay overtime rates unless the additional hours your employees worked are reasonable. This article explains the:

  • maximum weekly hours of work for your employees; and
  • factors that determine whether additional hours are reasonable and therefore not required to be paid as overtime.

What Are the Maximum Weekly Hours of Work?

The National Employment Standards set out the maximum weekly hours of work below.

Type of employee

Maximum weekly hours of work

Full-time employee

38 hours

Other than a full-time employee (for example, part-time employee)

The lesser of:

  • 38 hours; or
  • your employee’s ordinary hours of work in a week (that is, normal and regular hours of work, which do not attract overtime payments)

The maximum weekly hours of work include any hours of authorised paid or unpaid leave taken by your employees but does not include unpaid lunch breaks.

You must not request or require your employees to work more than the maximum hours in a week unless the additional hours are reasonable. Also, your employees may be entitled to refuse to work unreasonable additional hours.

What Are Reasonable Additional Hours?

A number of factors will affect whether the additional hours are reasonable, including:

  • health and safety issues and risk to your employee associated with the additional hours (for example, stress or fatigue);
  • the personal situation of your employee, such as family responsibilities;
  • your employee’s role and level of responsibility;
  • the needs of your business at the time; and 
  • what is normal in the industry.

You should also consider whether:

  • your employee’s remuneration reflects an expectation of working additional hours;
  • your employee is entitled to receive overtime payments, penalty rates or other compensation for working additional hours;
  • you have given your employee any notice that the additional hours are required to be worked;
  • your employee has given you any notice that they cannot work the additional hours; and
  • the additional hours are according to any averaging arrangements that are applicable or agreed with your employee.

Where you ask an employee to work additional hours that are not reasonable, they can refuse that request.

An Example From the Courts

In court proceedings in 2009, the Federal Magistrates Court considered the issue of reasonable additional hours. 

The Facts

The employee was a skilled electrical fitter working in the maintenance team for the employer. He was a married man with two university-aged children and two high school-aged children. The employer introduced a new 44-hour roster, requiring their employees to work a four-day shift comprising three 12 hour shifts and one 8 hour shift (without any night work). The employee subsequently informed his supervisor that he could not work all of the rostered hours because of family commitments. The employer then told the employee that he would be stood down without pay.

Findings of the Court

A comprehensive list of factors was considered by the court, including:

  • the extent of any night work;
  • the number of work hours without a break;
  • time off between work shifts;
  • risks to the employee’s health and safety;
  • the employee’s personal circumstances, including family responsibilities;
  • the operational requirements of the workplace;
  • notice provided by the employer that the employee work the additional hours;
  • notice provided by the employee;
  • hours worked by the employee over the previous four weeks; and
  • remuneration received for additional hours.

The court found that the additional hours were reasonable because the benefits to the employer outweighed the disadvantages to the employee. The court also concluded that the employee was adequately compensated because he received a work pattern allowance and extra rostered days off according to the new roster.

Averaging Arrangements

Modern awards, enterprise agreements and employment contracts may include terms providing for the averaging of hours of work over a specified period that is greater than one week.

The average weekly hours over the period must not exceed the maximum weekly hours of work set out in the table above, unless the additional hours are reasonable.

Example of an Averaging Arrangement

John employs a full-time worker. The modern award that covers John’s employee includes averaging arrangements concerning hours of work. The averaging arrangement provides that full-time employees ordinarily work 152 hours over four weeks (an average of 38 hours per week). During a four week period, John’s employee works:

  • 35 hours in week one;
  • 50 hours in week two;
  • 35 hours in week three; and
  • 38 hours in week four.

In this scenario, the averaging arrangement is relevant to determining whether the additional 12 hours that John’s employee worked in week two was reasonable.

Key Takeaways

The maximum weekly hours of work is 38 hours. You may ask your employees to work more than the maximum weekly hours, provided that the additional hours are reasonable. The specific circumstances of your business and your employee will determine if the additional hours are reasonable. Where such a request is not reasonable, the employee will be entitled to refuse the request. If you have any questions about overtime, maximum weekly hours or determining reasonable additional hours, contact LegalVision’s employment lawyers on 1300 544 755 or fill out the form on this page.

Frequently Asked Questions

How many hours can part-time or casual employees work per week?

Employees who are not full time can work 38 hours or their ordinary hours of work in a week (that is, normal and regular hours of work, which do not attract overtime payments), whichever is less.

How many hours can full-time employees work per week?

Full-time employees can work 38 hours per week.

Can employees refuse to work additional hours?

Your employees may be able to refuse to work unreasonable additional hours. However, if the hours you request are reasonable, they may not be able to refuse to work.

What factors are relevant when determining if additional hours are reasonable?

Relevant factors include workplace needs, norms in the industry, health and safety issues, the amount of remuneration or compensation that your employee receives, and if there are any averaging arrangements in place.

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