Overtime – it’s common, but is it legal?

With ABS statistics showing that most Australians are working more than the statutory maximum of 38 hours per week, an employment lawyer speaks about the legalities of overtime work.

According to the National Employment Standards (NES) an employer must not request or require an employee to work more than 38 hours of work in a week. But statistics are showing that most Australian employees are working beyond these hours.

Data from the Australian Bureau of Statistics (ABS) showed this week that 5 million of the 7.7 million full time workers in Australia were putting in over 40 hours each week.

It was also found that over 300,000 people in the national workforce were working excessive hours – categorised as 70 or more per week.

Another significant find was that senior members of staff were more likely to have worked long hours.

It was found that 82,000 managers put in more than 70 hours per week; this was more than any other group.

Bianca Mazzarella, a lawyer at Victorian firm McDonald Murholme, said that the ABS statistics prove Australians are hard workers who are prepared to give a more than is expected.

“At the beginning of any employment, employers should specify in their contract what is deemed to be reasonable overtime if the employee requests that they do so,” she advised. 

Employees are also protected by Enterprise Bargaining Agreements and Awards which usually specify the overtime rates that apply to their role.

These rates ordinarily apply when an employee is working outside of the normal contracted hours, and outside of normal working hours – which are 7am to 7pm.

“If an employment agreement or Award does not apply to an employee, an employer can request that reasonable over-time be worked by the employee provided there is no risk to the employee's health and safety and no adverse impact the employee's family responsibilities – amongst other considerations,” Mazzarella explained.

“Employees are not obliged to work over-time if the demand is unreasonable or if they are not paid overtime penalty rates in accordance with their entitlements. 

“What is considered to be reasonable overtime is a grey area of law, and will be viewed by taking into account all of the employee’s individual circumstances.”