What is Excessive Overtime?

Excessive overtime is when an employee is asked to work additional hours and that overtime is considered to be unreasonable. Therefore, unreasonable overtime is any overtime that is not ‘reasonable’.

Excessive overtime can include working outside ordinary hours, working weekends and public holidays and working an unsafe number of hours in a week or a day.

In this article, Prosper Law’s employment lawyer explains what excessive overtime is in the eyes of the law. Fair Work legislation and recent case law provide guidance on what is reasonable overtime and what can be classed as excessive.

This might sound confusing. In this article, Prosper Law’s employment lawyer explains what excessive overtime is in the eyes of the law. Fair Work legislation and recent case law provide guidance on what is reasonable overtime and what can be classed as excessive.

Reasonable Overtime and Excessive Overtime

An employer can request that an employee works reasonable overtime. Typically, your employment contract will state your hours and that you can be asked to work reasonable overtime. How you are paid for working additional hours will depend on your contract, Award, or enterprise agreement.

Whether overtime is reasonable or not is dependent on your individual circumstances, the industry you work in and your employer. However, there are some guidelines to help in determining if overtime is reasonable or excessive such as:

• any risk to health and safety from working the extra hours
• the employee’s personal situation, including their family responsibilities
• the workplace’s needs
• if the employee is entitled to receive overtime payments or penalty rates for working the extra hours
• if they are paid at a higher rate on the understanding that they work some overtime
• if the employee was given enough notice that they may have to work overtime
• if the employee has already stated they can’t ever work overtime
• the usual patterns of work in the industry
• the employee’s role and their level of responsibility
• if the overtime hours are in accordance with what an applicable award or agreement says about hours of work being averaged over a specified time
• any other relevant factors.

It is important to remember that whether overtime is reasonable or excessive is determined by your circumstances and your employer’s circumstances.

Fair Work Obligations and excessive overtime

Employers have a duty of care under Workplace Health and Safety legislation to ensure a safe and healthy work environment.

And part of ensuring a safe and healthy work environment is reasonable working hours, as excessive hours can lead to issues such as fatigue, stress, and mental health issues for employees.

The Fair Work Act 2009 (Cth) sets out several obligations that Employers must comply with, such as maximum working hours and overtime provisions. Under the Fair Work Act, your employer can ask you to work overtime however you can refuse if the request is unreasonable. For example, if you have to pick up your children, being asked to work additional hours would be unreasonable.

Businesses must also keep records of any overtime hours that employees work, and you can request these from your employer.

If you are covered by an award or enterprise agreement, you still have rights under the Fair Work Act. Any award or enterprise agreement cannot remove any of your rights under the Fair Work Act, such as the right to refuse unreasonable overtime hours.

Case Law and excessive overtime

The recent case of Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512 has highlighted the issue of excessive overtime.

An employee was contracted to work 50 hours per week as the business was busy and required staff to work long hours. The Court determined that the responsibility to prove additional hours are reasonable is on the Employer, and that:

“What is reasonable in any given case depends on an evaluation of the particular circumstances of both the employee and the employer having regard to all relevant matters”

The Court found that even though the overtime hours were necessary for the business, the hours were deemed unreasonable. This was because the employee could not refuse to work those additional hours.

What if an employee asked to complete excessive overtime hours?

If you believe your employer is asking you to work excessive overtime hours, you can reasonably refuse. Your employer cannot take any adverse action against you for reasonably refusing.

What is a reasonable refusal?

Reasonable refusal is dependent on your circumstances as an employee, but you may be able to refuse to work additional hours if the hours are likely to impact;

• Your health and safety by working the overtime
• Your family situation, including family responsibilities

If you haven’t been given enough notice of the overtime or if you have already advised you would be unavailable during that time, you may also reasonably refuse to work the overtime.

Whether a request for overtime is reasonable or excessive is dependent on the individual circumstances of you and your employment. If you think you may need to talk to an Employment Lawyer, get in touch today.

Case law examples of excessive overtime

Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512

In this case, the Court fouds that:

• The worker experienced an increase to his work hours. This led to fatigue and mental and physical exhaustion. This was enough to pose a risk to the employees’ health and safety.
• The staff shortages did not constitute reasonable evidence for overtime hours for existing employees.
• Failure to provide an employee with their appropriate award and Fair Work Information Statement is a breach of the Act.

“What is reasonable in any given case depends on an evaluation of the particular circumstances of both the employee and the employer having regard to all relevant matters including those matters mandated for consideration in s 62(2) [FWA]”.

• The onus to prove the hours were ‘Reasonable’ is on the person asserting the hours must have been worked.
• The employee “insisted that, if he were given a choice, he would not have chosen to work those hours”
• Though additional hours may be aligned with business needs, if an employee is not given the option to refuse, the hours can be deemed unreasonable
• Failure to keep appropriate records of employee working hours is a breach of the Fair Work Act.
• “All inclusive” wage is not a valid argument if the payrate in the contract is stated to be for “ordinary hours”

Re-stated the precedent of Poletti v Ecob (No 2) (1989) 31 IR 321 at 332–333

“that in which the parties to a contract of employment have agreed that a sum or sums of money will be paid and received for specific purposes, over and above or extraneous to award entitlements. In that situation, the contract between the parties prevents the employer afterwards claiming that payments made pursuant to the contractual obligation can be relied on in satisfaction of award entitlements arising outside the agreed purpose of the payments”

Financial Services Union and NAB

This matter is currently before the courts.

• Employees were ‘expected’ to work overtime and feared being fired or performance managed if they spoke up or refused
• 93% of surveyed employees worked more than their contracted hours without additional pay.
• Staff stated it was ‘expected’ overtime due to demands on their duties.
• Union surveyed 2338 employees in middle management (wages between $104,000 and $225,000) and found that 89% believed that neither their line manager nor their next up manager had ever done anything to stop the practice of persistent working beyond rostered hours.
  • Lack of action in stopping employees from working overtime hours, rather than action in requesting unreasonable hours.
• Staff were fearful of being subjected to material and psychological abuse by their employer, citing examples that justified those fears
• Financial Services Union report shows ‘culture of exploitation within the company’ and ‘failure to provide safe workplace’ due to actions regarding overtime hours.
• NAB are undertaking a thorough investigation after advising the Fair Work Commission that they have underpaid staff regarding overtime, annual leave, leave loading and superannuation. They have appointed PWC and King & Wood Mallesons to conduct the investigation, stating that any underpayment query will be entertained, with affected staff being reimbursed with interest (https://www.fsunion.org.au/massive-nab-underpayment-investigation-underway/)

How can Prosper Law help?

Prosper Law is Australia’s online law firm. We provide legal advice to businesses and individuals across Australia. Our areas of legal practice include contracts, eCommerce, publishing, legal counsel, and employment law.

If you need to talk to an Employment Lawyer, get in touch today.

Contact the team at Prosper Law today to discuss how we can provide you with workplace advice for a fixed fee or at affordable hourly rates.

Micaela Diaz | Solicitor

PROSPER LAW – Australia’s Online Law Firm

P: 1300 003 077

W: www.prosperlaw.com.au

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