Can my employer request that I work more than 38 hours per week?

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:

• any risk to employee health and safety from working the additional hours;
• the employee’s personal circumstances, including family responsibilities;
• the needs of the workplace or enterprise in which the employee is employed;
• 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 of any request or requirement 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, or the part of an industry, in which the employee works;
• the nature of the employee’s role, and the employee’s level of responsibility;
• whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
• any other relevant matter.

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:

• to create a work culture where employees work overtime;
• to complete all duties earlier so you will not need to work on an alternative day/save the company money on wages;
• to complete your boss’ work (that is not within your job description); or
• carry out duties that are not within your job description or implied duties.