Alex is Sprintlaw's co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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Running a business in Australia means keeping on top of your obligations under workplace laws. Overtime is one of the most common areas where things go wrong – and it’s also one of the easiest to fix with the right systems.
If you’re asking “what counts as overtime?”, “is overtime calculated daily or weekly?”, or “do I have to pay overtime to salaried staff?”, you’re in the right place. This guide breaks down the rules in plain English so you can stay compliant, manage costs and look after your team.
We’ll cover how overtime is defined, where the rates come from, when overtime kicks in, and the practical steps to approve, track and pay it properly. If you need tailored advice as you go, our team is here to help you set things up the right way for your business.
What Is Overtime In Australia?
Overtime is pay for work performed outside an employee’s ordinary hours. “Ordinary hours” are not the same for everyone – they’re set by the relevant industrial instrument (usually a Modern Award or an enterprise agreement) or, for award-free staff, by the employment contract.
In practice, overtime generally applies when an employee works:
- More than their ordinary hours in a day or week (for full-time employees, that’s usually 38 hours per week, but check the instrument),
- Outside the “span of hours” stated in the Award or agreement (for example, late nights, early mornings or weekends in some industries), or
- Beyond any daily or weekly limits in the applicable instrument.
Most private sector employers operate under the national system, so the Fair Work Act 2009 (Cth) sets the framework. It provides the National Employment Standards (NES), including maximum weekly hours and the right to refuse unreasonable additional hours. It doesn’t set overtime rates – those come from Awards, enterprise agreements or contracts. For a broader primer on the topic, many employers also refer to guidance on Australian overtime laws.
How Are Overtime Rates Set (And Are There State Differences)?
Overtime rates are primarily set by:
- Modern Awards (industry/occupation-based),
- Enterprise agreements (company-specific), or
- An employment contract (for award-free employees).
There isn’t one “national overtime rate” in the NES. That said, many Awards follow a familiar pattern such as time and a half for the first couple of hours and double time thereafter. Rates may be higher for weekends, public holidays or late-night work under particular Awards.
For most small and medium businesses, the rules are consistent across Australia because they come from the federal system. State-based differences usually arise in public sector settings or where a state industrial instrument applies instead of a Modern Award (less common for private businesses). The practical takeaway: work out which instrument covers each role, then apply its rules consistently.
If your team is award-covered, make sure your contracts reference the correct instrument and classification. If they’re award-free, set expectations clearly in the Employment Contract (ordinary hours, overtime approval, and how any extra hours are managed). If you’re unsure whether an Award applies, it’s worth checking your obligations with an employment lawyer early.
When Does Overtime Start: Daily, Weekly And Span Of Hours?
Whether overtime is calculated daily or weekly depends on the instrument. Typical overtime triggers include:
- Daily limits – for example, more than 8, 9 or 10 hours in a day,
- Weekly limits – commonly after 38 hours for full-time employees, and
- Work outside a defined span of hours – for instance, before 6–7am or after 6–7pm (varies by Award).
Some instruments use both daily and weekly triggers. If an employee exceeds either, overtime applies. Certain Awards also set different penalties for weekends, public holidays or late nights.
Casual employees still receive overtime when they exceed the relevant limits. The casual loading is generally included in the base used to calculate the overtime multiplier (the exact method is set out in the Award).
Always check the current instrument text – even small variations can change how you calculate overtime in practice. If your workforce spans multiple classifications or Awards, keep a simple matrix of rules to avoid errors, and train your payroll team to apply the correct trigger for each role.
Salaries, Award-Free And High-Income Employees: How Overtime Works
Salaried And Annualised Arrangements
Paying a salary doesn’t remove your overtime obligations. If an employee is covered by an Award, you can only “roll in” overtime through mechanisms that the Award allows (for example, an annualised wage arrangement), and you must meet strict requirements such as written terms, outer limits, time records and regular reconciliations. If the annualised amount falls short of what the employee would have earned under the Award, you’ll need to top it up.
Award-Free Staff
If an employee is truly award-free and not covered by an enterprise agreement, there’s no set overtime rate in legislation. The NES still applies (maximum weekly hours and the right to refuse unreasonable additional hours), but overtime or penalty rates will come from the employment contract or company policy. In practice, many employers set clear approval processes and may offer higher rates or time off by agreement to manage workload and retain staff. Put these rules in the contract and your staff handbook so expectations are transparent.
High-Income Employees
Employees who accept a formal “guarantee of annual earnings” above the Fair Work high-income threshold won’t be covered by a Modern Award while that guarantee is in place. However, the NES still applies, and you’ll need to ensure the agreed remuneration reasonably compensates for expected hours. Where possible, specify the ordinary hours, expectations around additional hours, and how remuneration compensates for those hours to minimise disputes later.
Managing Overtime Lawfully: Policies, Records And TOIL
1) Identify The Correct Instrument
Confirm the Award or enterprise agreement for each role and the classification level. Many private sector roles are Award-covered, including retail, hospitality, administration, healthcare and trades. If you’re between classifications, get advice before finalising your decision – it affects rates, overtime, breaks and roster rules.
Where your staff are award-covered, your contracts and onboarding material should reflect that coverage. Where they’re award-free, your contract needs to set out ordinary hours, when additional hours can be requested, and how those extra hours are compensated or managed.
2) Set And Communicate The Rules
- Document ordinary hours, span of hours and overtime triggers in contracts and policies.
- Require pre-approval for overtime to control costs and ensure compliance.
- Explain how to record hours and breaks (and how timesheets are verified).
It’s common to include these house rules in a Staff Handbook, alongside other workplace policies. If you don’t have one yet, a practical starting point is a tailored Staff Handbook that covers rostering, overtime approval and record-keeping.
3) Keep Accurate Time And Wages Records
You must keep reliable records of hours worked, overtime, and breaks. Clean data is your best protection if a dispute arises. Make sure payslips clearly separate ordinary hours and overtime with the applicable rates.
4) Approve And Pay Overtime Correctly
Apply the correct multipliers, including any differentials for weekends, public holidays or late nights set out in the instrument. Pay on time and include the detail on payslips. Small mistakes can snowball quickly – regular spot checks help catch issues before they turn into backpay claims.
5) Consider Time Off In Lieu (TOIL)
Some Awards allow time off in lieu (TOIL) by agreement instead of paying overtime. This isn’t a casual handshake – Awards that permit TOIL set strict rules about written agreement terms, record-keeping, timing of the time off and what happens if TOIL isn’t taken in time. If your workforce is award-free, TOIL is a matter of contract and policy – make sure it’s clearly documented and consistently applied to avoid disputes.
6) Train Managers And Roster Smartly
Most compliance issues originate in scheduling. Train supervisors on overtime triggers and approval rules, and use rostering tools that flag when a shift will trigger overtime or breach span-of-hours. Prevention is cheaper than cure.
7) Superannuation, Leave And Payroll Settings
Overtime hours don’t generally count toward accruing paid leave entitlements (unless an instrument says otherwise). For superannuation, the default position is that overtime that is clearly identifiable as overtime isn’t part of ordinary time earnings (OTE). Annualised or “all-in” pay arrangements can complicate this, so check your payroll setup with your accountant or payroll adviser to avoid errors.
8) Address Issues Early
If an employee raises a concern about hours or pay, review the roster, timesheets and instrument rules promptly. Many disputes come down to misunderstandings or missed approvals – a quick internal review can often resolve things without escalation.
Key Takeaways
- Overtime is work outside ordinary hours – the specifics (triggers and rates) come from Modern Awards, enterprise agreements or the contract for award-free staff.
- The NES sets maximum weekly hours and the right to refuse unreasonable additional hours, but it doesn’t set overtime rates.
- Whether overtime is calculated daily, weekly or by span-of-hours depends on the instrument. Some use more than one trigger.
- Salaries don’t cancel overtime obligations. Annualised wage arrangements must follow Award rules, with written terms, records and reconciliations.
- For award-free roles, set clear rules in the Employment Contract and policies, including approval processes and how extra hours are managed.
- Use TOIL only where permitted and in line with the applicable rules. Keep tight records and make sure payslips separate ordinary hours and overtime with correct rates.
- Overtime usually doesn’t accrue leave, and clearly identifiable overtime is generally not OTE for super – confirm your payroll treatment with your accountant.
- If you’re unsure about coverage, classification or salary structuring, get advice early from an employment lawyer to avoid expensive backpay later.
If you would like a consultation on overtime compliance for your business, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.
