2 min read

‘Can you stay back?’ Making a reasonable request for employees to work overtime

By Andrew Hobbs

WORKING through lunch, coming in early or going home late are steps many of us take to meet business deadlines – in fact, if you are a small business owner, there’s a good chance you do all three.

And while you can’t necessarily expect the same devotion from your employees, it seems that many workers willingly put in a little unpaid overtime to help keep things ticking over.

According to new research from the Centre for Future Work at the Australia Institute, employees gave their bosses an extra 5.1 hours of unpaid work per week, on average, in 2017 – up from 4.6 hours the year before.

Researchers found that full-time workers were performing about 6 hours of unpaid overtime per week, including working at home or on weekends, while that figure was higher for the self-employed (6.3 hours).

The researchers called the extra work a ‘gift’ – and they were not wrong. Typically, you will be liable to pay workers for any extra hours that they work in order to complete a task you set them in a reasonable amount of time.

Should you require your workers to put in some extra hours, there are limits to the amount you can legally and reasonably require from them, even if you are paying them overtime.

What current rules apply?

Generally, the maximum number of hours an employee can work is set out in an enterprise agreement, a modern award or, if those do not apply, the National Employment Standards (NES).

The standards, as set out in the Fair Work Act 2009, say that full-time employees are entitled to a maximum working week of 38 hours – while the hours of part-time workers must generally be set out in writing.

These hours can be worked on a regular weekly basis, or averaged out over a period – that could mean not working on Monday mornings but making up hours on Friday night, or working more hours in one week and fewer the next.

The length of an averaging period for employee hours must be specified in an enterprise agreement if it is not already spelled out in the award.

For employees covered by a modern award or enterprise agreement, additional hours are usually treated like overtime – paid at a higher rate, or allowing the worker to take time off in lieu.

Is your request reasonable?

The NES also allow an employer to get their employees to work “reasonable additional hours” above this 38-hour standard, or above the usual weekly hours for part-time or casual workers.

However, if a request is unreasonable, an employee is within their rights to refuse it.

According to Chapter H1 Hours of Work in the Employment Law Practical Handbook, requests for additional hours might be considered unreasonable if they:

  • would pose a threat to the employee’s health and safety, e.g. fatigue or stress;
  • would affect the employee’s personal circumstances, e.g. family responsibilities;
  • exceed the maximum ordinary working hours and no averaging period is in place; or
  • if they employee has not been given reasonable notice of the request.

You should consider these factors before you ask an employee to work extra hours, as well as other factors like the employee’s usual levels of work, their role and level of responsibility and how often previously you have asked the employee to work extra hours.

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