As workplace relations practitioners will be aware, s 62 of the Fair Work Act 2009 (Cth) (FW Act) forms part of the National Employment Standards.

The provision is somewhat unhelpfully entitled ‘Maximum weekly hours’ in that the FW Act does not set an outer limit on the hours of work an employee may be expected to perform in a week.  Instead, the provision is concerned with the reasonableness of the additional hours that need to be performed by an employee each week in excess of 38 hours (that is, in the case of full-time employees, noting the lower threshold for part-time employees).

The provision prohibits employers from requesting or requiring employees to work the additional hours unless they are reasonable, and enables employees to refuse to work the additional hours if they are unreasonable.

The reasonableness of the additional hours will be assessed on a case-by-case basis having regard to the matters provided in s 62(3) of the FW Act, which are as follows:

• any risk to employee health and safety from working the additional hours;
• the employee’s personal circumstances, including family responsibilities;
• the needs of the workplace or enterprise in which the employee is employed;
• whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, 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 his or her intention to refuse to work the additional hours;
• the usual patterns of work in the industry, or the part of an industry, in which the employee works;
• the nature of the employee’s role, and the employee’s level of responsibility;
• whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
• any other relevant matter.

In a recent decision of the Federal Court in Dorsch v Head Oceania Pty Ltd [2024] FCA 162, her Honour, Justice Raper at paragraphs [332] to [364] helpfully sets out the following insights in respect of claims involving an alleged breach of s 62 of the FW Act:

💡 Claims involving a breach of s 62 require a degree of precision.

💡 In order for an applicant to establish that there has been a breach of s 62, it is incumbent upon them to establish that, in the case of a full-time employee:

• they, in fact, worked more than 38 hours per week (including with some precision as to when); and
• their employer requested or required them to work more than those hours.

💡 An employee may establish that they were required to work a certain number of hours if they give evidence of:

• the work they were directed by their employer to complete; and
• the impossibility of completing it other than by working additional hours beyond their ordinary working hours.

However, whether there was such a requirement may depend upon other factors including, without being exhaustive, the employee’s seniority and level of autonomy within the enterprise to set their own working hours and the terms of contract, relevant industrial instrument, and any workplace guideline.

💡 Where an employee chooses to work additional hours without the approval and/or knowledge of the employer for professional development or personal gain then they cannot complain of an alleged requirement to work those additional hours.

💡 Self-authorisation of overtime by employees in responsible managerial positions (for the purpose of establishing the relevant employee was required by their employer to work the additional hours) has not been recognised by the authorities for good reason.

Contact us

If you have been subject to an allegation of having breached s 62 of the FW Act, or are concerned that your employer has breached the provision by requesting or requiring you to work additional hours of work that are not reasonable in the circumstances, please call us on 03 7020 6550 or email us at [email protected] if you would benefit from additional information or require help or advice.

The information in this Insight is of a general nature; it is not, and not intended to be, legal or other professional advice.  You should always obtain specific advice before acting on any information in this Insight.