Maximum Working Hours for Employees in Australia: Legal Limits and Exceptions

When you’re building a small business or startup, it’s normal to have periods where everyone is “all hands on deck”. A big client deadline, a new product launch, a seasonal rush, or a funding milestone can quickly turn into long days and late nights.

But as an employer, you can’t rely on hustle alone. In Australia, there are rules around maximum hours of work and what counts as “reasonable additional hours”. If you don’t get this right, you can expose your business to disputes, Fair Work claims, underpayment issues, or WHS (work health and safety) risks.

This guide is general information only (not legal advice). Awards, enterprise agreements and individual circumstances can change what you need to do, so it’s worth getting advice if you’re unsure.

In this guide, we’ll walk through what maximum hours of work means in practice, how “reasonable additional hours” works, where Awards and enterprise agreements fit in, and how to set up your business to stay compliant while still meeting operational demands.

What Are The Maximum Hours Of Work In Australia?

Under the National Employment Standards (NES) in the Fair Work Act, a full-time employee’s maximum weekly hours are generally:

• 38 hours per week, plus
• reasonable additional hours

For part-time employees, the concept is tied to their ordinary hours as agreed (and as permitted under any applicable modern award or enterprise agreement), plus reasonable additional hours.

Casual employees are also covered by the NES maximum weekly hours framework. While casuals don’t usually have “guaranteed” hours in the same way permanent staff do, you still need to make sure any additional hours you ask them to work are reasonable, and that you comply with any Award rules about shift lengths, breaks, and overtime (where applicable).

Why “Maximum Hours Of Work” Matters For Small Businesses

Startups and small businesses often have lean teams. If one person is doing the work of two, it’s easy for their hours to creep up. Over time, that can create legal and commercial problems, including:

• Wage and overtime exposure (especially if an Award applies and overtime penalties kick in)
• Workplace health and safety risks if fatigue becomes a hazard
• Employee relations issues if expectations aren’t clear
• Higher turnover when workloads become unsustainable

Good systems early (even when you only have 1–5 staff) can save you a lot of time and cost later.

What Counts As “Reasonable Additional Hours”?

The NES doesn’t ban overtime. Instead, it limits what you can require by saying additional hours must be reasonable.

Whether additional hours are reasonable depends on the circumstances. In practice, this is where most maximum hours of work issues arise-because what feels reasonable to a founder trying to hit targets may not be reasonable under workplace laws.

Key Factors That Affect Reasonableness

When assessing whether extra hours are reasonable, factors can include:

• Health and safety risks (fatigue, long shifts, insufficient recovery time)
• The employee’s personal circumstances (for example, caring responsibilities)
• The needs of the workplace (genuine peaks, emergencies, operational requirements)
• Whether the employee is paid for the additional hours (including overtime, penalty rates, or a salary that genuinely compensates for additional hours)
• The employee’s role and seniority (manager vs junior staff)
• Any notice you give of the need to work extra hours
• What the relevant Award, enterprise agreement, or employment contract says

It’s also important to remember employees can refuse to work additional hours if the request is unreasonable.

Salaries Don’t Automatically Mean “Unlimited Hours”

A common trap for startups is assuming that because someone is “on a salary”, you can roster or expect whatever hours you need.

In reality, maximum hours rules still apply. If an employee is Award-covered, paying a salary doesn’t automatically remove entitlements like overtime, penalty rates and allowances. Many employers use annualised salary arrangements (sometimes called an “annualised wage” or “set-off” arrangement), but these usually need to be structured correctly and you still need to ensure the employee is not paid less than what they would have been entitled to under the Award (including for the hours actually worked).

This is one reason it’s worth putting the right Employment Contract in place-so expectations about ordinary hours, additional hours, and remuneration are clear from the start.

How Awards And Enterprise Agreements Affect Maximum Hours Of Work

The NES sets the baseline, but many businesses also need to comply with a modern award or an enterprise agreement. This is where practical rules about hours and rostering usually live.

Depending on your industry, an Award may include rules about:

• ordinary hours span (for example, 7am–7pm)
• maximum shift lengths
• minimum break requirements
• overtime triggers and overtime rates
• penalty rates (weekends, public holidays, late nights)
• rostering rules and consultation obligations

So when you’re thinking about maximum hours of work, you’re usually dealing with two layers:

• the NES “38 hours plus reasonable additional hours” framework; and
• Award/enterprise agreement rules that can be more detailed (and sometimes stricter in practice).

Common Problem Areas We See In Growing Businesses

Some typical pressure points include:

• “Small changes” to rosters that accidentally breach Award notice requirements
• Long shifts without proper breaks
• Weekend work not costed correctly (penalty rates)
• Assuming a title like “manager” removes Award coverage (it doesn’t always)

If you’re unsure what instrument applies, it’s often worth doing an early compliance check before you scale hiring. It’s much easier to fix systems before you have 20 employees and complicated rosters.

Special Considerations For Startups: Flexibility, Remote Work, And “Always On” Culture

Startups often operate differently to traditional businesses. Flexible hours, remote work, global time zones, and high-growth expectations can blur the line between work time and personal time.

From a legal and risk perspective, you should be careful about treating “flexibility” as a one-way street (where the business is flexible for itself, but the employee has no boundaries).

Remote Work Can Still Create Excessive Hours Risks

When people work from home, it can be harder to spot when they’re routinely working late or not taking breaks. But if someone is working excessive hours and burning out, that can still create WHS issues-and it can also become an employment dispute later if expectations were unclear.

Practical ways to manage this include:

• setting clear ordinary hours (even if flexible)
• encouraging staff to log off and take breaks
• tracking hours for Award-covered employees
• building realistic staffing models (especially around launches)

Time Off In Lieu (TOIL) And “Make Up Time”

Some businesses use TOIL informally (for example, “work late this week and take Friday afternoon off”). This can be a useful tool, but it needs to fit within the Award/contract framework and still respect maximum hours requirements.

Not every Award allows TOIL in the same way, and where it is allowed, there are often conditions around:

• when TOIL can be taken
• how it is documented
• what happens if it isn’t taken within a certain period

If you want to build flexible arrangements into your team’s working patterns, it’s best to document this properly (and ensure it’s Award-compliant) rather than relying on informal promises.

How To Stay Compliant In Practice (Without Slowing Your Business Down)

Compliance doesn’t have to mean bureaucracy. Most small businesses can manage maximum hours of work risks with a few solid foundations.

1) Set Ordinary Hours Clearly In Writing

Ambiguity creates disputes. Your employment documents should clearly set out:

• ordinary hours (and how they’re worked, including flexibility)
• how additional hours will be requested and managed
• how overtime or additional hours are compensated (where applicable)

For many businesses, this starts with a properly drafted employment contract and supporting policies. If you’re building your suite of documents, a Staff Handbook can help create a consistent approach to hours, fatigue management, time recording, and expectations around availability.

2) Check If An Award Applies (And Follow Its Overtime/Break Rules)

Even if you pay above the minimum hourly rate, you may still need to follow Award rules on penalty rates, overtime and breaks. This is particularly important in hospitality, retail, health services, and many operational roles in tech companies (such as customer support).

A simple internal process can help, such as:

• identifying the likely Award classification for each role
• confirming ordinary hours and overtime triggers
• training managers on break and rostering requirements

3) Track Hours Where It Matters

In many small businesses, time recording feels “too corporate” until there’s a dispute. But tracking hours can protect you as much as it protects employees.

For Award-covered employees, accurate records help you show:

• you paid overtime correctly
• breaks were provided
• hours worked didn’t exceed safe or lawful limits

For salaried roles, tracking can still be useful as a “health check” to identify when a workload has become unsustainable.

4) Build A Roster/Workload System That Anticipates Peak Periods

Lots of maximum hours of work problems aren’t caused by bad intent-they’re caused by poor forecasting. If you know you have peak periods (end-of-financial-year, Black Friday, major product releases), plan ahead by:

• bringing in temporary staff (lawfully)
• adjusting deliverables and timelines
• staggering projects to avoid crunch stacking

If you engage contractors, make sure you have the right contracting paperwork and that the arrangement reflects the reality of the relationship. Misclassification risks can become very costly.

5) Use The Right Clauses For Flexibility (Not “Blank Cheques”)

Many businesses try to solve the “maximum hours of work” issue with a contract clause that says the employee must work “whatever hours are necessary”.

That kind of drafting can backfire. It may not align with the NES reasonableness test, and it doesn’t help your culture or retention. It’s usually better to use clear, practical wording that sets expectations while still recognising legal limits and wellbeing.

If you need your team to handle shift changes, on-call, or variable hours, document this properly rather than relying on assumptions. A tailored Workplace Policy can support consistency and reduce misunderstandings as you grow.

Common Questions Small Business Owners Ask About Maximum Hours Of Work

Can I Require An Employee To Work Overtime?

You can request additional hours, but whether you can require them depends on whether those hours are reasonable. You also need to check what the relevant Award or agreement says about overtime, including rates and conditions.

In practice, the safest approach is to:

• give as much notice as possible
• confirm the employee is compensated correctly
• avoid patterns of excessive hours that become the norm

What If My Employee Is Happy To Work Long Hours?

Even if an employee agrees (or doesn’t complain), you should still manage hours lawfully and safely. Problems often arise later-when someone resigns, becomes unwell, or raises an underpayment claim.

It’s also worth remembering that WHS duties apply regardless of whether someone “volunteered” to work while fatigued.

Do Breaks And Time Between Shifts Matter For Maximum Hours?

Yes. Maximum hours of work isn’t just about the weekly total-it’s also about fatigue risk and reasonableness. Many Awards have specific break rules and minimum rest periods between shifts. If you roster someone for repeated late finishes and early starts, that can create compliance and safety issues even if the weekly total looks acceptable.

What About Founders And Company Directors?

Founders often work extreme hours, especially early on. The maximum hours of work rules generally apply to employees, but founders should still treat excessive hours as a business risk (burnout is real, and it can derail growth).

If a founder is also an employee of the business, there may be additional considerations around their employment arrangements. If you’re setting up a company and formalising roles, it can help to put proper governance documents in place (for example, a Company Constitution if you’re operating as a company).

Key Takeaways

• The NES sets a baseline for maximum hours of work: generally 38 hours per week for full-time employees, plus reasonable additional hours.
• What is “reasonable” depends on the circumstances, including health and safety, personal circumstances, business needs, notice, and whether the employee is compensated.
• Modern awards and enterprise agreements often contain detailed rules about overtime, shift lengths, breaks and rostering, which can significantly affect day-to-day compliance.
• Being on a salary doesn’t automatically remove overtime and penalty-rate risk. If an Award applies, you generally need to ensure the employee’s pay arrangement at least covers their minimum Award entitlements for the hours they work.
• Clear employment documentation, sensible rostering, and appropriate time recording are practical ways to manage maximum hours of work without slowing your business down.

If you’d like help setting up employment contracts and policies that support growth while managing maximum hours of work, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.