Overtime and additional hours

The Fair Work Act provides that an employer must not request or require an employee to work more than 38 hours each week unless additional hours are reasonable. Sec 62 of the Act sets out the statutory factors which are to be considered when determining whether additional hours are reasonable including whether the employee is entitled to receive overtime payments, penalty rates or other compensation.

Accordingly, unless an employee’s work is covered by a modern award or enterprise agreement, or a contract which provides that extra hours over and above the hours for an ordinary week’s work will attract overtime payments, an employee is not entitled to be paid overtime for undertaking work in addition to the basic agreed hours.

Most awards and enterprise agreements make provision for overtime, but it is a myth in the community that working additional hours to those which are agreed will attract overtime rates or any legal recognition such as averaging of hours unless there is an agreement to that effect. Indeed in the absence of an express agreement, such hours may not attract a payment at all. To my own knowledge, law firms are a prime example of additional hours being universally unpaid.