What Counts as “Unreasonable Overtime” Under Australian Law?

1. The Legal Framework

National Employment Standards (NES) set out the working time protections under the Fair Work Act 2009 (Cth). For full-time employees, the maximum ordinary hours are 38 hours per week, unless a modern award or enterprise agreement specifies otherwise.

Working beyond this threshold is considered overtime, and is only lawful if it is reasonable. The onus is on the employer to justify that any additional hours are reasonable.

2. What Factors Define Reasonableness?

Section 62(3) of the Fair Work Act outlines specific factors to assess whether overtime is reasonable, including:

Health and safety risks, such as fatigue.
Personal circumstances, particularly family or caregiving duties.
Workplace or business needs.
Additional compensation, such as overtime or penalty rates or if the salary already anticipates extra hours.
Notice, both given by the employer and any refusal notice by the employee.
Industry norms, usual work patterns.
Role characteristics, including responsibility level.
Averaging provisions, whether overtime fits within legally agreed averaging arrangements.
Any other relevant considerations.

3. When Does Overtime Become Unreasonable?

While there’s no automatic cap on total overtime, excessive hours, especially regularly exceeding 38 hours weekly, are prima facie unreasonable, unless proven reasonable per the factors above.

For instance, in a Fair Work Commission decision, an employee refused to work mandatory overtime, about 70 to 80 hours per week, well beyond 38 hours. The employment tribunal can consider such extreme demands highly likely to be unreasonable.

Another case (Brown v Premier Pet, 2012) involved an employee being required to work three extra hours on a weekend, every 7–10 non-trading days, without negotiation or consideration of personal circumstances. The Commission deemed this requirement unreasonable, siding with the employee.

4. Averaging Hours

Awards or agreements may allow hours to be averaged over a period, commonly up to 13 weeks, or up to 26 weeks for award-free employees, so that a weekly average of 38 hours remains lawful.

However, simply being within an average limit doesn’t inherently make overtime reasonable; other statutory factors still apply.

5. Consequences of Unreasonable Overtime

If an employer imposes unreasonable overtime:

Employees can refuse the additional hours without penalty.
Employers may face civil penalties, compensation payouts, or orders to reinstate unfairly dismissed employees.
There’s growing legislative protection, such as, right to disconnect provisions guaranteeing refusal of after-hours contact, and new laws that shield penalty and overtime rates from being undermined in award negotiations.

What Is “Unreasonable Overtime”?

Legally excessive if regularly above 38 hours unless justified as reasonable.
Evaluated by a comprehensive, context-specific assessment (health, personal, workplace needs, compensation, notice, industry norms, etc.).
Unreasonable when demands ignore personal obligations, safety, notice, or fair compensation, especially if regular and prolonged.
Employees have a legal right to refuse unreasonable overtime.
Employers risk serious penalties if they ignore these standards.