Overtime Pay Rates Legal Advice

Overtime refers to any hours of work that an employee completes which exceed their normally scheduled hours of work. Overtime is usually paid at a higher rate than an employee’s normal rate however, it is common for an employer to request that employees work additional hours at no additional cost.

An employee has a right to question whether the unpaid overtime is necessary and legal. There is no fixed meaning of what reasonable additional hours maybe and this may vary on a case by case basis.

Section 62(3) provides a list of considerations that must be taken into account when determining whether additional hours are reasonable. They 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 is given by the employer of any request or requirement to work the additional hours;
• any notice is 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.