How Many Hours Can I Make My Employees Work in a Week? What the Law Says About Overtime!
In Australia, an employee’s employment arrangements are typically governed by the following legislative instruments:
- Modern Awards (Awards)
- The Fair Work Act 2009 (Cth) (the FW Act)
- The Fair Work Regulation 2009 (Cth) (the FW Regulations)
- The National Employment Standards (the NES).
Awards do not apply when an employer has an Enterprise Agreement or other Registered Agreement, and the employee is covered by that agreement.
In terms of how many hours an employee can work per week, the starting position, as set out in section 62(1) of the FW Act, is that an employer cannot request or require a full-time employee to work more than 38 hours per week unless those hours are ‘reasonable’.
The FW Act sets out the various factors that must be considered when determining whether the overtime is reasonable. Some of those factors include:
- any risk to the employee’s health and safety in working the additional hours
- the employee’s personal circumstances, including family responsibilities
- the needs of the workplace
- whether the employee is entitled to receive overtime payments, penalty rates or other compensation for working additional hours
- any notice given by the employer of any request or requirement to work the additional hours
- any notice given by the employee of their intention to refuse to work the additional hours
- the nature of the employee’s role, and the employee’s level of responsibility.
The laws surrounding overtime are tricky and complex. If an employee’s role requires them to regularly work beyond the usual 38 hours per week, the employer should obtain comprehensive legal advice as to how to best manage overtime within the workplace. This is particularly important when determining an employees’ payment entitlements for the overtime hours, as this can become rather complex when employees are expected to regularly work overtime.
How can you ensure you are complying?
There are a number of things that you can do to ensure your compliance with the various instruments. These include:
1. Increased Salary: Employers will often account for this in an increased salary or hourly rate, as compensation for the overtime hours that are sometimes worked. Employers should ensure that this amount is continually monitored against the overtime worked, to ensure that it remains above what the employee would otherwise be entitled to.
2. IFA or EBA: If overtime hours become consistent, then some options as to how to best manage these types of arrangements include Individual Flexibility Arrangements (IFA) and Enterprise Bargaining Agreements (EBA).
In any case, what will be the best option will be specific to an employee and employer’s circumstances, and the use of any option is by no means a ‘silver bullet’ to overcome an employer’s legal obligations.
How Enterprise Legal Can Assist
Enterprise Legal has extensive experience in employment law, both from the ‘front end’ of preparing and reviewing existing agreements and employment arrangements, through to resolving employment disputes.
We can assist your Business with assessing your current employment arrangements, reviewing your employees’ Employment Agreements (or creating new Agreements to ensure that they are fully compliant) and providing you with tailored and comprehensive legal advice as to how to best implement the relevant legislative requirements within your business.
If you require our help with any of the above, please contact our team today and we will be happy to assist you.
