“What constitutes ‘reasonable overtime’ and can I say no?”

“What constitutes ‘reasonable overtime’ and can I say no?”

It is common for employment contracts to include a clause that an employee may be expected to work ‘reasonable overtime’ at no extra cost to the employer and without overtime rates. In many Modern Awards, the employee’s “ordinary hours of work” refers to their typical hours of work.

The National Employment Standards (NES), and the Fair Work Act 2009 (Cth), both of which address what constitutes reasonable overtime, covers most employees.

According to the Fair Work Australia (1) an employer can request that an employee works reasonable overtime.

Overtime is when an employee works extra time. It can include work done:

  • beyond their ordinary hours of work
  • outside the agreed number of hours
  • outside the spread of ordinary hours.

An employee can refuse overtime if the request is unreasonable. According to Fair Work Australia, the usual test of what is reasonable in all circumstances is any request that takes the following into account:

  • any risk to employee health and safety
  • the employee’s personal circumstances, including family responsibilities
  • the needs of the workplace or enterprise
  • whether the employee is entitled to receive overtime payments, penalty rates or other compensation for (or a level of remuneration that reflects an expectation of) working additional hours
  • any notice given by the employer to work the additional hours
  • any notice given by the employee of his or her intention to refuse to work the additional hours
  • the usual patterns of work in the industry
  • the nature of the employee’s role and the employee’s level of responsibility
  • whether the additional hours are in accordance with averaging provisions included in an award or agreement that is applicable to the employee, or an averaging arrangement agreed to by an employer and an award/agreement-free employee]

Remember, when making the call about what is reasonable you should endeavour to help the enterprise that you are working with, which is providing you with a job, but not to go as far as to allow the enterprise to exploit you.

  • https://www.fairwork.gov.au/employee-entitlements/hours-of-work-breaks-and-rosters/hours-of-work/when-overtime-applies
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