Maximum weekly hours of work under the National Employment Standards

The NES also include rules about:

• When it is reasonable for an employer to require an employee to work additional hours, and when an employee can refuse.

• Averaging hours of work.

What are the maximum weekly hours of work?

The NES provide that an employer can only request or require an employee to work up to the following maximum weekly hours:

• for full-time employees - 38 hours,

• for part-time and casual employees - the lesser of 38 hours or the employee’s ordinary hours of work (usually set by an award, enterprise agreement or contract of employment).

However, an employer can request or require an employee to work additional hours beyond these maximums if the additional hours are reasonable (see below for more information on additional hours).

Authorised leave and absences count towards weekly hours

The number of hours which an employee is required to work in a week includes not only hours actually worked, but also any hours of authorised leave or absence (paid or unpaid) taken by the employee in the particular week.

“Authorised” in this context means leave or an absence authorised:

• directly by the employer,

• by a term or condition of an employee’s employment (such as a clause in an employment contract),

• by a law (e.g. a long service leave law) or other instrument (such as an award or enterprise agreement).

What are reasonable additional hours?

An employer can ask an employee to work more than their maximum hours if the additional hours are reasonable. The employee can refuse to work the additional hours if those hours are unreasonable.

The NES lists the factors that must be considered in deciding whether additional hours are reasonable. In summary, these are:

• health and safety risks of working the additional hours,

• the employee’s personal circumstances, including family responsibilities,

• the needs of the workplace,

• whether the employee will be paid overtime or penalty rates for the additional hours (or their salary includes compensation for additional hours),

• the amount of notice of the additional hours given by the employer,

• the amount of notice given by the employee of an intention to refuse to work the additional hours

• the usual work patterns in the employee’s industry,

• the nature of the employee’s role and their level of responsibility,

• whether the additional hours are in accordance with any terms relating to the averaging of hours (see below for more details on averaging), and

• any other relevant factors.

Averaging of hours

The NES allows averaging of hours in some cases.

Averaging of hours generally means that an employee works different ordinary hours from week to week but is paid the same amount each pay period for their ordinary hours.

An example of an averaging arrangement is where over a four-week period, a full-time employee works 42 hours in the first three weeks and 26 hours in the fourth week, but is paid for 38 hours for each week. At the end of the four-week period, the employee has worked and been paid for 152 hours, or an average of 38 hours per week.

Under the NES, averaging arrangements can only be used if:

• a modern award or enterprise agreement applying to the employee includes averaging terms, or

• the employee is not covered by an award or enterprise agreement.

Awards and agreements will generally specify the maximum averaging period.

For award and agreement-free employees, the averaging period must be no more than 26 weeks.

Importantly, in any averaging system, the average weekly hours cannot be more than:

• for full-time employees - 38 hours,

• for part-time and casual employees - the lesser of 38 hours or the employee’s ordinary hours of work.

What payment must be made for additional hours?

The NES does not include overtime rates for additional hours. Overtime rates are generally set by awards and enterprise agreements. Employment contracts may also include overtime entitlements.

It is important for employers and employees to carefully check the overtime rules that apply to their circumstances because entitlements can vary significantly between awards and enterprise agreements. Further, employment contracts and individual flexibility agreements can change the way overtime provisions in an award or enterprise agreement operate.

Employees not covered by an award or enterprise agreement are not entitled to overtime rates under the NES, but they may have overtime entitlements set out in an employment contract.

Key takeaways

• Before requesting or requiring an employee to work beyond their ordinary hours, employers should assess whether the additional hours are reasonable having regard to factors such as safety, personal circumstances and operational needs.

• Check whether averaging arrangements are allowed under the applicable award, enterprise agreement or the NES and that average hours do not exceed the relevant limits.

• It is important to check the applicable award, enterprise agreement or employment contract for the overtime rates and rules specific to the circumstances.

• The Fair Work Ombudsman’s website has further information about maximum weekly hours under the NES.