Can An Employee Refuse To Work Overtime?

Can you require an employee to work overtime if your business needs the coverage? Often, yes - but only where the extra hours are reasonable and you meet your pay, rostering and safety obligations.

That can feel tricky when you have a last-minute staff shortage, a big customer order, or a deadline that simply has to be met. You might be wondering whether you can insist, whether the employee can say no, and what happens if they refuse.

The key concept under Australian employment law is reasonable additional hours. Once you understand that idea, overtime becomes much easier to manage in your rosters, contracts and day-to-day conversations with staff.

Can An Employee Refuse Overtime In Australia?

Yes, an employee can refuse overtime in Australia if the additional hours are unreasonable. Under section 62 of the Fair Work Act 2009, you can request or require an employee to work reasonable additional hours, but an employee may refuse additional hours if they're unreasonable.

The National Employment Standards set maximum weekly hours. For a full-time employee, this is 38 hours per week, plus reasonable additional hours. For an employee who isn't full-time, the maximum is the lesser of 38 hours and their ordinary weekly hours, plus reasonable additional hours.

This means overtime isn't automatically unlawful. It also means it isn't automatically mandatory just because your roster or contract says so.

In practice, you need to ask two questions:

• Are the extra hours allowed under the Fair Work Act, any modern award or enterprise agreement, and the employment contract?
• Are the extra hours reasonable in the circumstances?

If the answer to both is yes, an employee who refuses may be failing to follow a lawful and reasonable direction. If the answer is no, disciplining the employee could create a bigger problem for your business than the missed shift itself.

You should also check the applicable modern award or enterprise agreement. It may set overtime rates, minimum breaks between shifts, maximum spread of hours, rostering notice rules, time off in lieu rules, or other limits that affect whether the overtime can be required.

What Counts As Reasonable Additional Hours?

Reasonable overtime depends on the whole situation, not just whether your business is busy. The Fair Work Act gives a list of factors to weigh up, and they're very practical once you apply them to a real roster.

When deciding whether extra hours are reasonable, look at things like:

• Health and safety risks, including fatigue, late finishes, early starts and physical demands of the work.
• The employee's personal circumstances, including family or caring responsibilities that you know about.
• Your business needs, such as genuine staff shortages, seasonal peaks, urgent deadlines or safety coverage.
• How much notice you gave before asking the employee to work extra hours.
• How much notice the employee gave that they couldn't work the extra hours.
• Whether the employee will be compensated through overtime rates, penalty rates, allowances or time off in lieu where allowed.
• The nature of the role, including seniority, responsibility and whether extra hours are common for that role.
• The employee's usual work pattern, including whether the overtime is occasional or becoming constant.
• Any award, enterprise agreement or contract terms that deal with hours and overtime.

A Worked Example

Say Mia runs a cafe in Brisbane. Her full-time supervisor, Lina, is rostered for 38 hours from Tuesday to Saturday. On Tuesday morning, Mia asks Lina to work an extra 4 hours on Sunday because another supervisor is away and a large catering order is due.

That request is more likely to be reasonable if Lina receives proper overtime pay under the applicable award, has enough rest between shifts, gets several days' notice, and doesn't have a health or caring issue that makes the Sunday shift difficult.

The answer changes if Lina has already worked 50 hours that week, finished late the night before, has told Mia she has Sunday childcare responsibilities, or is asked at 9pm to start at 6am. In that version, Lina's refusal may be reasonable, even if the cafe is under pressure.

Can You Make Overtime Mandatory In A Contract Or Roster?

You can include overtime obligations in an employment contract or roster, but you can't use them to override the Fair Work Act, a modern award or an enterprise agreement. A contract clause helps set expectations, but it doesn't turn unreasonable overtime into reasonable overtime.

A good overtime clause usually says the employee may be required to work reasonable additional hours where needed, and that any overtime will be paid or dealt with as required by the applicable award, enterprise agreement or contract.

Be careful with wording that says an employee must work any overtime your business requires. That kind of blanket wording can be misleading and hard to rely on if there's a dispute.

Your roster also matters. If you publish a roster and then frequently change it at the last minute, you may be breaching award rostering rules or creating an argument that the overtime is unreasonable because the employee didn't get proper notice.

Since 26 August 2024 for non-small business employers, and from 26 August 2025 for small business employers, eligible employees also have a right to disconnect under the Fair Work Act. This doesn't ban overtime. It does mean an employee may refuse to monitor, read or respond to work contact outside hours unless that refusal is unreasonable.

For your business, the practical point is simple: plan overtime through rosters where you can, use after-hours messages and any employee monitoring only when they're genuinely needed, and make sure managers know when a phone call or text can wait.

What Should You Do If An Employee Refuses Overtime?

You should pause and check whether the overtime request was reasonable before you discipline an employee for refusing. A refusal isn't automatically misconduct.

Work through the issue in this order:

1. Check the legal source: Confirm the employee's contract, modern award or enterprise agreement, and the Fair Work Act rules on hours, breaks and overtime.
2. Ask why they refused: The reason matters. It may relate to fatigue, illness, caring responsibilities, study, transport, safety, pay concerns or right to disconnect issues.
3. Look at the roster history: Check their ordinary hours, recent overtime, rest breaks and whether overtime has become frequent.
4. Consider alternatives: Could you split the shift, call in a casual employee, offer voluntary overtime, adjust deadlines, or approve time off in lieu if the award allows it?
5. Record what happened: Keep a clear note of the request, notice given, employee response, business need, and your decision.
6. Only consider disciplinary action after that: If the direction was lawful and reasonable, and the employee had no good reason for refusing, you may be able to manage it as a conduct issue.

If you do take disciplinary action, keep it proportionate. Start with a conversation where appropriate, give the employee a chance to respond, and follow your usual performance management process.

Be especially careful if the refusal is connected to workplace rights, safety concerns, illness, disability, pregnancy, caring responsibilities or underpayment concerns. Those situations can raise general protections, discrimination or work health and safety issues, so it's worth getting tailored advice before moving to a formal warning or termination process.

How Should You Draft Overtime Clauses And Rostering Policies?

You should draft overtime clauses and rostering policies so they're clear, flexible and consistent with the Fair Work Act and any award or enterprise agreement. Templates can be a useful starting point, but they often miss industry-specific rostering rules, so a lawyer should tailor the wording before you use it.

A good clause or policy helps your team understand when overtime may be required, how approval works, and how staff should raise concerns early. It also gives managers a consistent process instead of making decisions on the run.

Overtime Clause Or Policy Outline

1. Ordinary Hours: State the employee's ordinary hours, usual days of work, and any roster pattern that applies.
2. Reasonable Additional Hours: Say the employee may be asked or required to work reasonable additional hours where needed for the business.
3. Notice Of Overtime: Explain how much notice you'll try to give, and who can approve overtime.
4. Pay And Time Off In Lieu: Set out that overtime will be paid or managed in line with the applicable award, enterprise agreement or contract.
5. Fatigue And Safety: Require managers to consider rest breaks, late finishes, early starts and safety risks before approving overtime.
6. Refusing Overtime: Explain how employees should raise personal circumstances or safety concerns, and who will assess the request.
7. After-Hours Contact: Deal with when managers may contact or monitor employees outside hours and how right to disconnect issues will be handled.
8. Records: Confirm that start times, finish times, breaks, overtime and approvals must be recorded accurately.

If your employees are covered by a modern award, check whether annualised wage arrangements, set-off clauses or time off in lieu rules are available and correctly documented. A salary doesn't automatically cover all overtime. You still need to make sure the employee is better off overall than they would be under the award or enterprise agreement.

From 1 January 2025, intentional underpayment can also be a criminal offence under federal workplace laws. For everyday rostering, the practical point is to keep accurate time records and make sure overtime is paid correctly.

Common Mistakes To Avoid With Overtime

The biggest mistake is treating overtime as a purely operational issue. It's also a legal, safety and people management issue, and those pieces need to line up.

Common overtime mistakes include:

• Assuming a salary covers everything: If an award applies, you need to check the employee is still receiving at least their minimum entitlements overall.
• Forgetting rest breaks: An overtime shift may look fine on paper but still create fatigue or breach award rules about breaks between shifts.
• Using last-minute overtime too often: Occasional urgent overtime is one thing. A constant pattern may suggest your ordinary staffing levels aren't working.
• Not recording actual hours: If you can't prove when someone started, finished and took breaks, overtime disputes become much harder to resolve.
• Disciplining too quickly: You need to know why the employee refused before deciding whether the refusal was unreasonable.
• Ignoring after-hours contact: A manager repeatedly messaging staff late at night can create right to disconnect issues, even before any overtime shift is worked.

One practical way to reduce problems is to build an overtime approval step into your rostering process. Before overtime is confirmed, ask the manager to check:

• How many hours the employee has already worked that week.
• Whether the employee will have proper breaks before and after the shift.
• Which award, enterprise agreement or contract rule applies to pay.
• Whether the employee has been given reasonable notice.
• Whether there are known personal circumstances that should be considered.

This doesn't have to be complicated. Even a short checklist in your rostering system can help you make fair, consistent decisions and reduce the chance of a dispute later.

Key Takeaways

• An employee can refuse overtime if the additional hours are unreasonable under the Fair Work Act.
• You can request or require reasonable additional hours, but you need to consider safety, notice, personal circumstances, pay and the business need.
• A contract or roster can set expectations, but it can't override the National Employment Standards, a modern award or an enterprise agreement.
• Only discipline an employee for refusing overtime after you have checked whether the direction was lawful and reasonable.
• Clear overtime clauses, accurate time records and practical rostering processes can help protect your business.
• Right to disconnect rules now affect how you contact employees outside hours, especially for last-minute overtime requests.

If you'd like help with your employment contracts, overtime clauses, rostering policies or managing an employee's refusal to work overtime, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.