Excessive hours and other breaches see employer ordered to pay over $59,000 compensation and penalties

In a 2024 report, “Taking up the Right to Disconnect”, the Australian Institute has found that on average, employees are completing 3.6 hours of unpaid overtime a week. This is equal to 188 hours per year per worker. If you’re concerned your boss is making you work unreasonable hours, this article is for you.

In this article, we consider a 2024 Magistrates Court (VIC) decision where it was found that an employee had worked unreasonable hours. The employer was liable for contravening the Fair Work Act 2009 (‘the Act’) and was ordered to pay the employee compensation in the amount of $7,913.84 + $271.89 to the plaintiff’s nominated superannuation fund.

The Court also imposed penalties of:

• $22,200 for contravention of s 323(1) of the Act;
• $26,640 for contravention of s 44 of the Act in respect of s 62(1) of the Act; and
• $2,385.07 for interest.

The total penalties imposed were $51,225.07.

Background to the case

In Readdie v People Shop [2024] VMC 16, Ms Readdie was employed as a solicitor at a law firm from 17 February 2022 to 13 March 2022. Ms Readdie claimed the following with respect to her employer:

• She wasn’t paid by her employer;
• Her employer didn’t follow record-keeping obligations;
• She was required to work unreasonable hours;
• Her employer didn’t grant her compassionate leave; and
• She wasn’t reimbursed for work-related expenses she incurred.

Specific factors set out at section 62(3) of the Act must be considered in determining whether additional hours an employee is requested or required to work are reasonable.

These factors are as follows:

• Any risk to employee health and safety from working the additional hours;
• The employee's personal circumstances, including family responsibilities;
• The needs of the workplace or enterprise in which the employee is employed;
• 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;
• Any notice given by the employer of any request or requirement to work the additional hours;
• Any notice given by the employee of her or his intention to refuse to work the additional hours;
• The usual patterns of work in the industry, or the part of an industry, in which the employee works;
• The nature of the employee's role and the employee's level of responsibility;
• Whether any applicable modern award, enterprise agreement, or arrangement between the employer and employee provides for averaging of hours worked, and whether the additional hours are in accordance with those terms; and
• Any other relevant matter.

The Court’s considerations

The Industrial Division of the Magistrates’ Court of Victoria considered that s 62(1) of the Act ‘imposes a limit on the number of hours an employee may be asked or required to work’ and that the limit for a full-time employee is 38 hours a week ‘unless the additional hours are reasonable’.

Ms Readdie worked 67.46 hours in the week beginning 14 February, 79.46 hours in the week beginning 21 February and 79.25 hours in the week beginning 7 March. Her employment contract permitted her to work up to 40 hours a week and stated that she may be required to work in excess of 40 hours in a given week ‘when it is reasonably expected’.

The Court considered Ms Readdie’s personal circumstances, which included family responsibilities. Following Ms Readdie’s mum returning home from hospital, Ms Readdie was required to work additional hours, although she was trying to make arrangements for her mum. Ms Readdie didn’t see her mum on her mum’s birthday and was required to attend work although she had requested a day of leave for her former partner’s funeral.

The Court also considered that Ms Readdie was rarely given notice from her employer about the hours she would be required to work.

Ms Readdie was a junior employee in her first solicitor role and was required to supervise other staff when she was supposed to be supervised by another solicitor herself. She worked excessive hours while in a hotel room with her boss and the firm’s office manager, who deprived her of personal autonomy and agency.

Court finds employer caused employee to work unreasonable hours

The Court concluded that the additional hours the employer required Ms Readdie to work in the weeks beginning 14 February, 21 February and 7 March were unreasonable. [para 138 of the 2024 judgment] Ms Readdie’s employer was found to have contravened s 62(1) and was liable to pay Ms Readdie $26,640 for this contravention.

In total, Ms Readdie was awarded $59,138.91 + $271.89 in superannuation for her employer’s many breaches of the Act, including their contravention of s 62(1).

What can I do if my boss is making me work excessive or unreasonable hours?

Under s 62(2) of the Fair Work Act, employees may refuse unreasonable additional hours. If you believe you are working unreasonable hours, you can initially consider raising the issue directly with your employer. You’re legally allowed to do so as this is an exercise of a workplace right.

You could do this by:

• arranging an in-person meeting with your employer; and/or
• sending your employer an email or letter.

If your employer does not respond or their response is unacceptable, you can:

• contact your union or an employment lawyer for assistance; and/or
• raise an anonymous complaint with Safe Work Australia.

Get help from an employment lawyer

If you’re experiencing any issues with your employment, including issues related to working excessive hours, you should contact one of our award-winning employment lawyers for assistance and advice. 

Contacting Hall Payne Lawyers

You can contact us by phone or email to arrange your consultation; either face-to-face at one of our offices, by telephone or by videoconference consultation.

Phone: 1800 659 114
Email: general@hallpayne.com.au

Further reading:

• Additional hours – what is reasonable?
• Australian workers have the “Right to Disconnect” outside usual hours
• Benefits of contemporaneous notes in legal proceedings