What is reasonable overtime?

The concept of ‘reasonable overtime’ as delineated in the Fair Work Act is a pivotal aspect of employment law in Australia.

• Historical Context and Legal Framework: 

The notion of ‘reasonable overtime’ is entrenched in the Fair Work Act, which aims to balance the demands of employers with the rights of employees. This legislative provision was initially designed as a protective measure against excessive work hours. However, its interpretation has evolved significantly, raising concerns over its practical implications in modern workplaces. 

• Interpretation and Challenges in the Current Workplace: 

Presently, what constitutes ‘reasonable overtime’ is subject to a variety of factors, including but not limited to, the terms of employment contracts, the nature of the employee’s role, and personal circumstances. Research from the Centre for Future Work, particularly in their ‘Go Home on Time Day‘ reports, highlights a pervasive trend of employees working extended hours under the guise of ‘reasonable overtime’. 

In a recent SBS article it’s noted that:

“To determine reasonable hours, the Fair Work Act states that aspects such as needs of the business, personal circumstances, notice given, usual patterns of work in the industry, the employee’s role and level of responsibility, as well as risks to the employee’s health and safety need to be taken into account. ”

• Employer-Employee Dynamics: 

This shift in the interpretation of ‘reasonable overtime’ often disproportionately burdens employees, leading to extended work hours that intrude upon personal life and well-being. The academic discourse suggests a need to re-evaluate the concept in light of these skewed dynamics, which tend to favor employer interests over employee welfare. With the majority of Australian workers on individual contracts, there’s a reliance on individual negotiation  in the workplace to prevent employers taking advantage of ‘reasonable overtime’, which unfairly leaves those with the least power to advocate for their wellbeing. An employee might be unwilling or unable to push back on exploitative practices alone as they fear for future promotions and job security or just don’t want to be the one to ‘let the team down’.

• Employee Rights and Advocacy: 

From an academic standpoint, it is imperative for employees to be cognisant of their legal rights under the Fair Work Act. Engaging in informed discussions with employers about overtime terms and conditions is crucial. This approach underscores the importance of recognising and addressing instances where ‘reasonable overtime’ crosses into exploitation. This reliance on individual action in so many white collar jobs is also why it’s so crucial for workers to join their unions. Collective agreements are one of the most important ways workers can look to implement programs like Time off in Lieu (TOIL) and Rostered Days Off (RDOs), as well as laying out standards for overtime and on-call pay rates.

Professionals Australia published the below guidance as part of their article Overtime: What you need to know:

“Can you refuse to work additional hours?

The Fair Work Act allows employees to refuse to work additional hours if they are unreasonable.

However, there is no legislative definition, chart, or formula, of what constitutes ‘reasonable’ additional hours. Instead, the Fair Work Act lists a number of factors that must be taken into consideration when determining whether additional hours are “reasonable”.

Whether an employer’s request is reasonable depends on several factors:

• Any risk to employee health and safety from working the additional hours;
• The employee’s personal circumstances, including family responsibilities;
• The usual patterns of work in the industry, or the part of an industry, in which the employee works;
• If the employee is entitled to overtime pay or penalty rates for working the overtime, and/or 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 overtime falls within the average of ordinary hours;
• The needs of the business;
• Any other relevant factors.

The reasonableness of the request or the refusal to work will differ for each member and each circumstance.

I don’t think I’m being fairly compensated for working overtime, what should I do?

If you are concerned that you are being asked to work unreasonable additional hours, or you are not being compensated for the extra hours you are working, you should raise this matter with your supervisor or manager and explain why you believe the additional hours are unreasonable or demonstrate your calculations.”

The term ‘reasonable overtime’, as embedded in the Fair Work Act, requires a nuanced understanding and careful application in the Australian workplace context that has left far too much space for employer exploitation. The current trend points towards a need for a more balanced approach that genuinely considers employee well-being alongside employer requirements. A critical re-examination of this concept is essential to foster fair and equitable workplace practices. If you don’t think you’re being fairly compensated, don’t feel comfortable discussing or negotiating your overtime with your employer and/or believe it’s time your team had a proper system in place to address overtime, then it’s time to join your union.