'Reasonable Additional Hours' and Your Right to Refuse Overtime

The core right is short. An employee may refuse to work additional hours beyond 38 (or beyond their ordinary weekly hours, if not full-time) if they are unreasonable (art. 62(2)). This sits directly alongside the employer's obligation not to require more than 38 hours unless the additional hours are reasonable (art. 62(1)).

So there are two sides of the same coin. The employer cannot compel unreasonable additional hours; you cannot be validly disciplined for refusing them. The whole question, therefore, turns on one word — reasonable — and the Act does not leave that to guesswork.

Article 62(3) lists everything a court must weigh in deciding whether additional hours are reasonable or unreasonable. There are ten factors, and they must all be taken into account:

• (a) any risk to employee health and safety from working the additional hours;
• (b) the employee's personal circumstances, including family responsibilities;
• (c) the needs of the workplace or enterprise in which the employee is employed;
• (d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
• (e) any notice given by the employer of the request or requirement to work the additional hours;
• (f) any notice given by the employee of an intention to refuse to work them;
• (g) the usual patterns of work in the industry, or the part of the industry, in which the employee works;
• (h) the nature of the employee's role, and the employee's level of responsibility;
• (i) whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement, or an averaging arrangement agreed under section 64;
• (j) any other relevant matter.

No single factor is decisive. A senior employee on a salary built around long hours (factors d and h) sits very differently from a shift worker with young children, given no notice, being asked to stay back with a safety risk (factors a, b, e). Reasonableness is a balance of all ten.

This is the crucial distinction. The reasonableness test governs the lawfulness of the request — whether you can be required to work the hours, and whether you can refuse. It does not set the rate you are paid for the hours you do work.

Look again at factor (d): it asks whether you receive "overtime payments, penalty rates or other compensation" for the extra hours. The pay itself is a factor in the reasonableness balance — but the actual rate comes from your modern award, enterprise agreement or contract, not from article 62. Australia has no statutory overtime multiplier. So even where additional hours are perfectly reasonable and you agree to work them, the question "what are they worth?" is answered by your award, not by this section.

Put simply: article 62(2)–(3) is about whether the hours can be demanded; your award is about what they pay.

Two of the ten factors are about notice — and they cut in both directions. Factor (e) weighs the notice your employer gave you; factor (f) weighs the notice you gave of an intention to refuse. This matters in practice: if you object to additional hours, doing so clearly and in advance strengthens your position, just as an employer springing last-minute demands weakens theirs. Reasonableness rewards communication on both sides.

The right to refuse unreasonable additional hours is part of the maximum weekly hours standard, and the NES "set minimum standards … which cannot be displaced" (art. 61). An award or agreement can offer more protection than the NES, but it cannot take this floor away. Your right to refuse unreasonable hours travels with you regardless of what a contract tries to say.