Understanding Section 62 of the Fair Work Act for Employers

When you’re running a business and building your team, one of the key questions that arises is how much you can ask your employees to work each week - and when does overtime cross the line into being unreasonable? This is an area where it’s crucial to get things right, not just to avoid legal risks but to keep your workplace fair, motivated, and sustainable for everyone involved.

That’s where Section 62 of the Fair Work Act comes into play. It sets out the maximum weekly hours for full-time, part-time and casual employees, and provides important guidance about what counts as “reasonable additional hours” and “reasonable overtime” in Australia. As an employer, it can be tricky to navigate these rules - but understanding and applying them properly can save you from costly disputes, Fair Work claims, or reputational damage.

In this guide, we break down exactly what Section 62 of the Fair Work Act means for businesses, how to interpret “reasonable overtime,” what documentation and workplace practices you need, and where to get help keeping your business compliant. If you’re keen to create a fair, productive workplace and avoid headaches, keep reading - we’re here to help with practical legal advice you can trust.

What Is Section 62 Of The Fair Work Act?

Section 62 of the Fair Work Act 2009 (Cth) is the main provision in Australian employment law setting the maximum number of “ordinary” hours an employee can be required to work in a week. It forms part of the National Employment Standards (NES), which apply to nearly all Australian employees, regardless of whether they’re covered by an Award, Enterprise Agreement, or other registered agreement.

The short version? As an employer, you can’t just decide someone needs to work as many hours as you want. Section 62 places clear limits - and also outlines when, and how, you can ask for “reasonable additional hours.”

Fair Work Act Section 62: Key Points

• Maximum 38 Ordinary Hours: For full-time employees, the maximum is 38 hours per week. Part-time employees are capped at their agreed ordinary hours (for example, 20 hours per week).
• Reasonable Additional Hours: You can ask employees to work more than the maximum, but only if these hours are “reasonable.”
• Right to Refuse: An employee has the right to refuse unreasonable additional hours - this is protected by law.
• Protection Under NES: These limits are minimum standards that can’t be overridden by employment contracts or policies (even if your employee agrees to them in writing).

What Counts As 'Reasonable Additional Hours' Or 'Reasonable Overtime'?

Employers often ask: How much overtime is too much? When is it considered “reasonable additional hours” under Section 62, and when could it land you in hot water with Fair Work?

The answer is that it depends on the circumstances. Section 62(3) of the Fair Work Act says the employer can only require an employee to work more than the maximum “if the additional hours are reasonable.” There is no fixed number - but the Act sets out a list of factors to be considered.

Factors For Assessing Reasonable Additional Hours

• The needs of the business or workplace
• Any risk to health and safety from working the extra hours
• The employee’s personal circumstances (family responsibilities, carer’s obligations, etc.)
• Whether the employee is entitled to overtime, penalty rates or other compensation for the additional hours
• The amount of notice given by the employer for the additional hours
• The usual patterns of work in the industry
• The nature of the employee’s role and level of responsibility
• Whether the additional hours are in line with any Award provisions or Enterprise Agreement
• Any other relevant matter

In practice, this means you need to look at each case individually. What’s reasonable overtime for a senior manager during an urgent project may not be reasonable for a retail worker with carer’s duties, especially with short notice.

What Are Some Examples?

Let’s say you run a small hospitality business and have a team member who’s happy to pick up extra shifts on weekends at penalty rates, and the roster is published well in advance - that may well be reasonable. But if you consistently expect an award-covered employee to do late-night overtime at the last minute, especially without extra pay, that could quickly be seen as unreasonable under the Fair Work Act.

How Many Hours Per Week Can I Ask Employees To Work?

The “fair work hours per week” limit under Section 62 is clear:

• Full-Time Employees: Maximum of 38 ordinary hours per week.
• Part-Time Employees: Maximum of their agreed ordinary hours per week (as set out in their contract or roster).
• Casual Employees: The ordinary hours are generally determined by the actual hours worked and the roster system, but they are still protected by the “reasonable additional hours” requirement.

You can request more hours - but only if they’re reasonable in all the circumstances. Remember, “ordinary hours” are different to “additional” or “overtime” hours, and the rules around overtime rates in Awards or Enterprise Agreements may apply on top.

How Is Reasonableness Judged (And Who Decides)?

If there’s a dispute, the Fair Work Commission or a court will look at all the circumstances and make a “reasonableness” call by weighing up the factors in Section 62(3). The best way to protect your business is to:

• Understand your employees’ circumstances and keep communication open
• Document the reasons for extra hours and provide as much notice as possible (especially for significant increases)
• Respect an employee’s right to say no to additional hours if they are unreasonable for them
• Apply any Award or enterprise agreement rules alongside the NES

Are There 'Reasonable Additional Hours' Clauses I Can Include In Contracts?

You may have come across so-called “reasonable additional hours clauses” in sample employment contracts - a typical clause states that the employee agrees to work reasonable additional hours as required by the employer.

While these clauses are common and can set expectations, remember that they do not override the National Employment Standards. Even if an employee has signed a contract agreeing to work the hours “deemed reasonable by the employer,” you must still apply the Section 62 test, and the ultimate decision about what’s reasonable is not yours as the employer - Fair Work or the courts can review it.

That’s why it’s wise to make sure any “reasonable additional hours” clause in your employment contracts aligns with the law and is supported by workplace policies that help staff understand how extra hours will be handled. Consult legal experts if in doubt.

What If An Employee Refuses Overtime Or Additional Hours?

Under Section 62(2) of the Fair Work Act, an employee can refuse to work additional hours if those hours are unreasonable based on their particular circumstances or the factors in the Act. This means that if, for example, a worker is regularly required to work late nights with no extra compensation or consideration of their family needs, they are entitled to decline.

As an employer, you cannot take disciplinary action or dismiss someone because they exercised this right. Doing so could expose your business to unfair dismissal or general protections claims.

The principle is that additional hours must be a matter of open discussion and mutual agreement, not compulsion. It’s always better to work with your team on flexible, fair solutions.

How Does Reasonable Overtime Relate To Awards, Agreements And Penalty Rates?

If your industry is covered by a Modern Award (or you have an Enterprise Agreement in place), always check the relevant rules about:

• What counts as “ordinary” hours (sometimes different to 38 per week!)
• How overtime is defined, recorded, and paid
• When penalty rates apply for extra hours or certain rostered times (e.g. weekends, public holidays)

Award and agreement terms will always apply in addition to the NES - not instead of them. If you ignore the Award in favour of your own “reasonable additional hours” policy, you could be at risk of a Fair Work claim or underpayment case.

It’s your responsibility as an employer to keep track of working hours, calculate overtime correctly, and pay penalty rates where required.

Why Does This Matter For Your Business?

Complying with Section 62 of the Fair Work Act is not just a legal box-ticking exercise - it’s vital for building a healthy workplace and a sustainable business model. Excessive or unreasonable hours can lead to:

• Burnout and high staff turnover
• Increased risk of workplace injury or workplace claims
• Low morale, and a negative business reputation that makes it hard to recruit
• Legal action - including penalties and having to back-pay staff for unlawful overtime

On the flip side, respecting your team’s right to a fair work-life balance, being upfront about overtime expectations, and rewarding additional effort (with penalty rates, time-in-lieu, or other benefits) can make your team more motivated and help your business succeed in the long run.

What Legal Documents And Processes Do I Need?

To properly manage working hours, it’s essential to have the right legal documents and workplace practices in place. Here are the key items every employer should consider:

• Employment Contracts: Should clearly specify ordinary hours, expectations around overtime (in line with Section 62), and required notice for any changes. Avoid “unlimited hours” clauses and ensure any “reasonable additional hours” language aligns with the Fair Work Act.
• Workplace Policies: Document your approach to overtime, additional hours, breaks, and penalty rates. Make sure policies reference the relevant law and any Award or Agreement that applies. Clear staff handbooks prevent misunderstandings down the track.
• Time and Attendance Records: Accurate, up-to-date logs of each employee’s hours (not just rosters - actual time worked) are vital to safeguard against disputes, and you’re legally required to keep them.
• Payslips: Payslips must show overtime hours worked and rates paid. Learn more about payslip requirements.
• Communication Processes: Regularly check in with staff about their workload and personal circumstances, and provide channels for them to raise concerns around hours worked.

If you’re unsure if your employment templates are compliant, or if your workplace processes need a refresh, it’s a sensible idea to have them reviewed by a legal expert.

Best Practices For Managing Reasonable Additional Hours

Managing staff hours fairly does require some effort, but it doesn’t have to be overwhelming. Here are a few tips that we’ve seen work well for Australian businesses:

• Be Transparent From Day One: Set clear expectations at hiring, including how extra hours are managed and compensated.
• Encourage Two-Way Communication: Let employees know they can raise concerns and make sure they feel safe declining unreasonable overtime.
• Use Rosters And Scheduling Tools: These can help prevent last-minute requests and enable staff to plan their outside commitments.
• Reward Extra Effort Appropriately: Whether it’s monetary (overtime/penalty rates), time-off-in-lieu, or recognition, ensure additional effort is valued.
• Review Awards And Agreements Regularly: Fair Work and Award rules can change - make a habit of checking at least yearly that you’re still compliant.
• Keep Records Diligently: Good record-keeping isn’t just legal protection - it helps you spot issues early and build trust with your team.

What If I Get It Wrong?

Breaching Section 62 of the Fair Work Act (by demanding unreasonable hours or ignoring overtime rules) is taken seriously. Penalties can include:

• Fines against the business and individuals involved
• Orders to compensate or reinstate unfairly dismissed employees
• Reputational harm that can affect staff morale and customer perception

Regularly review your contracts and compliance - especially as your business grows or changes direction. Don’t wait for a Fair Work claim to find out you’ve made a mistake.

Key Takeaways: Section 62 Fair Work Act For Employers

• Section 62 of the Fair Work Act limits regular working hours (usually 38 per week for full-time staff) and permits additional hours only if they are reasonable under the circumstances.
• The law doesn’t set a strict ceiling on overtime, but requires you to consider a number of factors - including health, safety, personal circumstances, and compensation - when deciding if extra hours are reasonable.
• Employees have the right to refuse additional hours if they’re unreasonable for them, and employers must not penalise them for doing so.
• Your employment contracts, policies and rostering practices must align with the Fair Work Act, relevant Awards and Agreements, and should be updated as your business evolves.
• Keeping good records and having open communication are key to managing overtime fairly and avoiding disputes.
• Getting legal advice up-front helps set your business up for long-term compliance and success.

If you would like a consultation on managing employee hours or ensuring your business is compliant with Section 62 Fair Work Act, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.