It is common for an employer to request that an employee work additional hours. However, an employee has a right to question whether the unpaid overtime is necessary and legal.
The National Employment Standards contained in Part 2-2 of the Fair Work Act 2009 (Cth) provide 10 minimum standard terms and conditions of employment in Australia which apply to all national workplace relations system employees.
Section 62(1) states that:
An employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:
(a) for a full‑time employee—38 hours; or
(b) for an employee who is not a full‑time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
WHEN ARE ADDITIONAL HOURS REASONABLE?
Ordinarily, an employer must not request that an employee works more than 38 hours a week unless the additional hours are reasonable. There is no fixed meaning of what reasonable additional hours may be and this may vary on a case by case basis. However, Section 62(3) provides a list of considerations that must be taken into account when determining whether additional hours are reasonable. They are as follows:
Another relevant matter would be the employee’s annual remuneration and their position within the enterprise. If an employee is in a senior position (such as a managerial role) and/or a higher salary reflects a standard of work required, it may be reasonable for an employer to require overtime to complete the requirements of the role.
However, if your employer is merely requesting you work additional hours without additional remuneration or for an unreasonable reason, this may be illegal. Examples of unreasonable reasons to work additional hours may be: