Work Hours & Breaks

Employees who are covered by a modern award are entitled to overtime pay, penalty rates, allowances, paid meal breaks etc. We see many companies failing to follow and provide award entitlements properly.

When Do I Get Overtime Pay?

You work "overtime" when you work extra hours above your ordinary hours of work.

If you are covered by the federal system, you will be entitled to overtime pay when you have worked overtime and an award or enterprise bargaining agreement (EBA) states that you are entitled to overtime pay. The award or EBA will state the rate at which your overtime is to be paid.

If you are not covered by modern award or EBA, then you may not be entitled to overtime pay if you are being paid a salary and if the overtime work is reasonable. If the overtime work is not reasonable, then the business may be in breach of the Fair Work Act 2009, and you may be entitled to a remedy.

Overtime Under Awards & EBAs

Overtime under an award or EBA accrues in various circumstance, but here are the most common situations:

  • Working outside of the ordinary hours set under the award. For example in the Building and Construction General On-site Award 2020, it's outside of 7am to 6pm Monday to Friday.
  • Working more than 38 hours per week, which sometimes can be averaged for full-time and part time employees (e.g. in the Building Award it can be averaged over a 20-day 4-week cycle). However, averaging cannot normally occur for casual employees as they do not have an ongoing expectation of employment.
  • Working more than a certain number of hours per day, such as 8 hours under the Building Award. Under the Miscellaneous Award this is 10 hours unless extended to 12 hours by agreement.
  • If an employee works on a rostered day off.
  • Working outside of the employee's normal ordinary agreed working hours (this particularly applies to part-time employees).
Overtime Must Be Authorised
Overtime Must Be Authorised

Legal cases have stated that an employee is not entitled to the payment of overtime or penalty rates unless such overtime is authorised by an employer. This can be authorised by the employer expressly or impliedly (eg where the employer has not expressly authorised it but it's deemed to authorise it by their actions).

In Australian Salaried Medical Officers' Federation v Peninsula Health (2023), doctors-in-training made claims for overtime payments for overtime worked at a public hospital for which they were not paid. The doctors were covered by an EBA. Their employer did not expressly tell them to work the extra hours but they won the case for overtime pay because, among other factors, the doctors had to work past their rostered shift to complete the work required of them. In this case, the employer implicitly authorised the overtime work.

The law states that self-authorisation of overtime by employees trusted to work alone or in responsible managerial positions has never been recognised by courts as being grounds for employees to claim overtime pay.

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

If you are a full-time employee under the federal system, your employer usually cannot demand that you work more than 38 hours per week unless the extra time is reasonable.

Note that you may have an award or EBA that allows for the averaging of weekly hours over a certain period. For example, you may work 60 hours in one week and 16 hours the next week. Despite the disparity between the two weeks, the average is still 38 hours per week. Your award or EBA may allow this so that you may not be entitled to overtime pay for the additional hours in the first week.

However, even if your award or EBA allows for the averaging of weekly hours, other factors are still important in determining whether the overtime is reasonable. Other factors include your health and safety when working additional hours, whether you were given notice for the need to work the additional hours, and your family responsibilities. If your employer demands that you work unreasonable overtime, you can refuse.

What Meal Breaks Or Other Breaks Am I Entitled To?

If you are covered by the federal system, your meal breaks or other breaks (eg. tea breaks and other short breaks) will largely depend on your award or EBA. Your award or EBA will usually set out the obligations regarding the duration of your breaks and when they can or should be taken. Your award or EBA will also specify whether you are to be paid for certain breaks. We can help you understand your award or EBA.

What Roster Days-off Do I Get?

Again, this will usually depend on your award or EBA. Your award or EBA may set out when you are entitled to roster days-off and whether they are to be paid or not.