Work Hours & Breaks

Your maximum weekly hours, when you can refuse extra hours, when overtime and penalty rates are payable, your breaks, and your right to disconnect outside working hours. We see many businesses get award overtime and break entitlements wrong.

When Do I Get Overtime Pay?

You work overtime when you work more than your ordinary hours. The Fair Work Act 2009 (Cth) does not itself require overtime to be paid at a higher rate. That comes from your modern award, your enterprise agreement or your contract.

If an award or enterprise agreement covers you, it will say when overtime starts and the higher rate at which it must be paid. A salary or "all-inclusive" rate does not remove that entitlement unless it genuinely covers what the award requires for the hours you actually work.
If no award or agreement covers you and you are paid a salary, you may not be entitled to separate overtime pay, as long as the extra hours are reasonable. Your salary is usually taken to cover reasonable additional hours. If the extra hours are unreasonable, your employer may be breaching the Act.

Every national system employee, award-covered or not, is protected by the maximum weekly hours rule in the National Employment Standards (see below).

Overtime Under Awards & Enterprise Agreements

Each award and agreement has its own rules, so always read yours (the Fair Work Ombudsman's pay guides and our simplified awards help). The most common triggers for overtime are:

Working outside the span of ordinary hours the award sets for your industry, for example before or after set times on weekdays.

Working more than 38 ordinary hours a week, or more than the average allowed where the award lets hours be averaged over a roster cycle.

Working more than the maximum ordinary hours in a day or shift set by the award.

Working on a rostered day off.

For part-time employees, working beyond the hours agreed when you started, depending on how your award deals with varying those hours.

Where both a daily and a weekly overtime trigger are met by the same hours, you are paid the higher rate for those hours, not both. And whether time counts as work at all (travel, pre-start checks, being on call, a meal break you cannot really take) depends on the award and the circumstances.

Overtime Must Be Authorised

Courts and tribunals have held that overtime is payable only if it was authorised by the employer, but authorisation can be express or implied. It can be implied where your employer directed the work, knew and approved of you working the extra hours, had an ongoing arrangement that you would, or set work that could not realistically be done within your rostered hours.

Some awards go further and require overtime to be specifically directed. On the other hand, an employee who is trusted to work alone generally cannot authorise their own overtime simply by choosing to stay back.

The practical lesson: if you are regularly working extra hours, tell your manager in writing, keep a record of your start and finish times, and keep any messages that show your employer knew you were working back.

What If I Don't Want To Work Overtime But My Employer Demands It?

The 38-Hour Maximum

Under s 62 of the Fair Work Act, your employer must not request or require you to work more than 38 hours a week if you are full-time (or, if you are part-time, more than the lesser of 38 hours and your ordinary hours) unless the additional hours are reasonable. You may refuse additional hours that are unreasonable. Authorised leave counts as hours worked.

What Makes Additional Hours Unreasonable?

All the circumstances are considered, including any risk to your health and safety, your personal circumstances and family responsibilities, the needs of the workplace, whether you are paid overtime or a salary that reflects an expectation of extra hours, how much notice you were given (and whether you gave notice of refusing), the usual patterns of work in your industry, the nature of your role and your level of responsibility, and any averaging arrangement that applies.

Averaging

An award or agreement may allow hours to be averaged over a period, and an award-free employee can agree in writing to average hours over up to 26 weeks (ss 63-64). For example, a longer week can be balanced by a shorter one. Averaging is relevant to whether hours are reasonable, but it does not decide the question on its own.

Protection

Refusing unreasonable additional hours is exercising a workplace right. Your employer must not dismiss you or take other adverse action against you for it. See general protections.

What Meal Breaks Or Other Breaks Am I Entitled To?

The National Employment Standards do not set meal or rest breaks. In the national system your breaks come from your award or enterprise agreement, which will usually say how long they are, when they must be taken, whether they are paid, and what happens if you have to work through them (often a penalty rate until you get your break).

An unpaid meal break is only truly unpaid if you are free to leave the workplace or be unavailable for work during it. If you have to stay on the floor, answer the phone or keep an eye on things, that time may have to be paid.

Breaks are also a work health and safety issue, because fatigue from long shifts without breaks is a risk your employer has to manage.

What Rostered Days Off Do I Get? And Can My Employer Contact Me On Them?

Whether you get rostered days off (RDOs) depends on your award or agreement. Some arrange ordinary hours so that you work slightly longer days and accrue a paid day off each cycle; the award will say whether RDOs can be banked or substituted.

Modern awards must also include a term requiring your employer to consult you about a change to your regular roster or ordinary hours of work (s 145A).

Outside your working hours, you have a right to disconnect: you can refuse to monitor, read or respond to contact from your employer (or from others about your work) unless your refusal is unreasonable (s 333M). See our page on the right to disconnect.

If you are in the WA state system, maximum hours and reasonable additional hours are dealt with in a similar way by the Minimum Conditions of Employment Act 1993 (WA). See minimum conditions in the WA state system.

If you are being asked to work unreasonable hours, or have not been paid for overtime, contact us for a free confidential discussion.

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