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On the face of it, Australian workers have it pretty good.
The 38-hour working week is standard and includes an unpaid 30-minute lunchbreak. Minimum time-off between shifts is enshrined. And there are four weeks of leave every year with public holidays on top.
LoadingSuch conditions, many hard won by the union movement, represent a gargantuan improvement from the 10-hour-day, six-day week that faced Australian workers in the 1880s, the 44-hour clock-on, clock-off workday of the 1950s, or even the Greed is Good 1980s when office hours morphed into tax-free late nights out that were career-ending to refuse.
The conversation around a four-day week is ongoing and COVID has entrenched flexible work in many workplaces. This month new laws enforcing the right to disconnect out of hours were agreed with the goal to encourage work-life balance. The French have been doing it for years — and who wouldn't want a bit of their famous joie de vivre?
But overtime — often coerced and unpaid or without lieu days being offered — is a hidden burden for many Australian workers who have told the ABC of being expected to work 12-hour days by managers who threaten their ability to handle the job if they refuse and of the subsequent impact of long hours on their mental health.
"I regularly worked 12 to 14 hours a day while in a sales position that required contact with international suppliers," one man revealed. "It led to a significant deterioration in my mental health and played a big part in the breakdown of my marriage."
Professor Greg Bamber, director of the International Consortium for Research in Employment and Work at Monash Business School and immediate past president of the Australian Labour and Employment Relations Association, says Australians work "a huge amount of overtime".
"Many workers complain that they are not paid for all their overtime, and it is increasingly a vexed and controversial issue," he says.
Part of this controversy is that while the Fair Work Act 2009 — which lays out work regulations and protections in Australia — is clear on overtime rules, the experiences of individual workers suggests interpreting them in the real world can be opaque.
Key questions are open to interpretation: How many additional hours are too many? When should employees be paid for overtime or reimbursed with time off? When is goodwill towards an employer and commitment to getting the job done appropriate? Do answers to all of these questions change depending on how much you get paid? And how much should that be?
'Without overtime I doubt I would be where I am today'
When the ABC asked the audience for personal experiences of working overtime, responses came quickly.
Some shared stories of their lives being transformed by a willingness to put in extra hours at work.
"Overtime has been crucial in enabling my family and I to get ahead," one wrote.
"I don't think real success ever comes from doing the bare minimum eight-hour day. Sometimes going above and beyond what others are willing to do is what it takes to make your mark," wrote another.
"Until I was financially secure, I always took up every opportunity to work overtime," said a third. "It helped me to learn about the value of money, it helped to learn the benefits of improving myself and it helped me to achieve my financial goals. Without access to the money I made via overtime, I doubt I would be where I am today."
These responses reflect overtime that was offered, but not demanded, and came with extra payment for extra hours.
This is overtime as it used to be, as it should be, say industry experts, and can be a win-win for employees who have an avenue to earn more and build skills — or freedom to decline overtime without penalty. It is also a win for employers who are able to meet business demands by keeping their operation running.
The use of overtime as a tool to build a business is at the heart of the Business Council of Australia's objection to right to disconnect legislation.
"We remain opposed to the bill as a whole because it adds complexity, cost and red tape at the worst possible time, making it harder to do business and hire staff, and negatively impacting jobs and our economy," BCA chief executive Bran Black said in a statement. "There has to be give and take — some employees value the ability to leave work early or arrive a little later than others with the understanding that they work at other times, so it's about balance."
Is it overtime, overwork or excessive work?
Yet many Australian workers believe there has been too much take, and not enough give.
Statistics back up a picture suggesting Australian workers struggle to ensure the laws and regulations governing working life also work in reality.
According to OECD research, 12.5 per cent of Australians work what is termed "very long hours", defined as putting in more than 50 hours a week and placing us 34th out of 41 OECD member nations.
This compares unfavourably against other comparable OECD members including the UK (10.8 per cent) and US (10.4 per cent). But the picture is alarming when ranked beside nations like Canada (3.3 per cent), Spain (2.5 per cent), Norway (1.4 per cent) and The Netherlands (0.3 per cent), for example.
Among OECD countries that could be considered similar to Australia, only New Zealand (14 per cent) and Japan (15.7 per cent) — well known for its crippling office culture that drives some workers to suicide — has worse figures.
The Australia Institute's 2023 report into overtime, released to coincide with the annual Go Home On Time Day, found Australia workers put in an average of 280 hours of unpaid overtime every year. The Institute equated this to around six hours a week and valued it at just over $11,000 a year.
By the 19th century it was recognised that working excessive hours posed a danger to workers' health and to their families, Bamber says.
More recent research from ANU suggests health and wellbeing declines after working 39 hours each week.
Many argue they are not fairly compensated for the extra hours they work and Chris F Wright, associate professor of work and organisational studies at the University of Sydney and an expert in labour market policy, says overtime can be difficult to untangle from overwork or excessive work.
Dr Fiona McDonald, Policy Director Industrial and Social with the Australia Institute's Centre for Future Work adds flexibility, which she says has been tied erroneously in some workplaces to overtime.
"Flexibility doesn't mean unlimited work," she says, rebutting a frequent criticism of the disconnect legislation. "Flexibility and connectivity technology have allowed us to extend work into times and places beyond the old rigid schedules. That has meant there are no boundaries around it for some people."
Responses to the ABC's request for individuals' experiences of overtime brought this dilemma to life.
The ABC received stories of 50-hour weeks plus 10-hours of commuting. A work culture where late nights and weekend work was expected to "reach targets" and exhaustion was "worn as a badge of honour". Tales of agreed time in lieu that was never honoured.
"My boss needed extra work done in a short space of time. I said I could do it but I would need to do an extra 10-20 hours per week to complete it. When I put my end of month time sheet in, for an extra 35 hours, he said, 'Well, that's pushing the boundaries of reality' and wandered off. I had rescheduled events and doctor's appointments to do that work and rearranged my staff's schedule," wrote one woman.
"I was made to feel like I wasn't good enough just because I found doing 12-to-15-hour days and working weekends difficult," said one person, who explained their life transformed when they found a workplace with more regular hours.
"I was bullied by management and told it was because I wasn't available after hours and during leave," one woman said.
"Overtime, at times, has completely overtaken and stifled my life," revealed another.
"If you demand your right to regular business hours, you affectively forfeit any opportunity for promotion," one man concluded.
How many hours should we be putting in at work?
The Fair Work Act 2009, and specifically Section 62, rests on a test of what is considered "reasonable".
Yet limited pre-existing legal challenges means case law is lacking as a point of reference, says employment lawyer Jessica Heron from Maurice Blackburn. This differs from areas of employment law like unfair dismissal which is rich with legal precedents.
The right to disconnect legislation has tossed another question into the mix: Will a worker's right to disconnect eclipse Section 62 of the Fair Work Act that lays out when additional work hours are reasonable?
"Who wins? That's a live question," says employment lawyer Heron. "We don't have an answer to that contention so we're all watching with bated breath to see how it rolls out."
But what is reasonable?
Author of the Australia Institute report Fiona McDonald says a culture of overwork "has become a kind of expectation in some industries and companies".
"Reasonable depends on your workplace, your role and your responsibilities," she says.
Much has been written about the overtime demands facing teachers, junior doctors and lawyers, for example. But these industries are not alone. And McDonald says young people — wherever they work — can be particularly vulnerable.
"If they've walked into a high-performing, fast-paced work culture that is basically built on overwork they're learning that this is what happens here," she says. "The power imbalance means it's difficult for an employee to say, 'I don't I think this is reasonable'.
From a legal perspective, proving that overtime is not a one-off or short-term thing but an ongoing expectation at odds with what is reasonable, is the tipping point.
What does the legislation say?
The concept of "reasonableness", outlined in Section 62 of the Fair Work Act 2009, underpins the Fair Work Ombudsman's guidelines for maximum weekly hours. A test of reasonableness is also the guiding principle of the right to disconnect legislation.
But what's reasonable can be a subjective idea. A hallmark of the stories received in the ABC's callout was a disconnect between what an employee felt was reasonable, and what an employer did.
Under Section 62 employers can ask their employees to work overtime as long as it passes 10 tests of reasonableness including potential risks to health or safety, how it impacts personal circumstances (such as caring responsibilities), how senior the worker is and their salary level and typical work patterns in the industry, for example.
What is "reasonable" can be interpreted in many ways, and it's important to adjust reasonableness standards as society changes.
"A couple of generations ago we had a male breadwinner employment model, where there are very gendered divisions of labour," McDonald says. "The vast majority of women were providing all the domestic work, parenting and raising children, and were not in the paid labour force."
These days all adults — whatever their gender — are increasingly in paid labour, and remaining at work for longer while also combining work with caring duties whether that is parenting or people with disabilities or aged care.
"We need workplace arrangements where the capacity to work and provide care and do things outside work needs to be seen as the norm."
What happens when employers and employees can't agree?
Lawyer Jessica Heron says investigating whether an employer has a case to answer regarding excessive overtime is not as simple as whether an employee is putting in more than 38 hours for free.
Investigation begins by steadily building a picture of the employee's work situation.
Things like how many hours are being worked over how many weeks or months may be the first step. A few weeks of 12-hour days may not be unreasonable, Heron says, yet if this was ongoing over three-to-six months, or if the hours consistently overlapped with family responsibilities, the picture may be different.
"The length of time and the amount of overtime per week is a metric you could use to make a forensic assessment as to whether there might be a case to be made," Heron says.
And how much the worker is being paid is a "really important" test of reasonableness, Heron says.
Bamber from Monash agrees: "Overtime practices should reflect the context. It might be reasonable for employers to ask highly paid executives or professionals to work urgent overtime. Such overtime is part of their effort-reward bargain that may be implicit or explicit," he says.
"But is not fair for employers to ask relatively low-paid workers to work urgent overtime without awarding them appropriate extra pay and agreeing an overtime roster in advance, so that they can plan their other commitments."
If an employee is covered by an industry award but is paid above that award, a clause in their contract could stipulate reasonable additional hours are worked in return for a higher salary.
"If being contacted outside of hours is an expectation of the job you have some remuneration to offset it," the Australia Institute's McDonald says.
However, Heron says the employee's health and wellbeing would also be considered.
And the new right to disconnect legislation is going to throw another facet into the reasonableness test and will be watched closely, Heron believes, to determine whether the Fair Work Act or right to disconnect becomes the dominant guideline.
Is legal action the only solution?
Yet not every employee is going to be willing to go straight to a lawyer to solve overtime dilemmas.
An employee's first port of call should be their employer's human resources or people and culture division, says employment lawyer Heron. The Fair Work Ombudsman will also intervene to assist and the employee can represent themselves in court and request that their employer do the same to level the playing field.
Declining union membership has been a trend in the workplace over the past three decades, says Wright, who points out that many conditions Australian workers enjoy today can be tracked to the union campaigns of the past when most workplaces had union representatives on site.
"That means there was someone who was essentially an expert in the law and the regulations but whether or not someone was able to access those rights often depended on whether there was a union member in the workplace and could ensure that employers comply with it," he says.
As union membership has declined the government has stepped in, Wright says, to regulate employment standards from setting laws, such as the Fair Work Act, to establishing tribunals. Workplaces, too, have expanded their human resources divisions.
"The Fair Work Ombudsman does a good job," Wright says. "But it doesn't have the resources for a workplace presence that unions once had."
McDonald agrees: "In those large, more unionised workplaces, [overtime is] likely to be negotiated. In smaller workplaces or individual workers, it's going to be harder."
Wright points to Europe where union presence is relatively stronger: French workers, for example, have a standard 35-hour week and right to disconnect laws have been in place since 2017.
Loading...Where are working hours heading?
Cultural shifts around the right to disconnect and four-day week are coming from a desire for work not to fill up our whole lives, McDonald says.
"And while Gen Z is leading that [cultural change] in not wanting to work full-time, wanting to be able to switch off, the Australia Institute survey shows they remain the most vulnerable to unpaid overtime and overwork."
The conversation now is about shifting the power balance. "Employees in our industrial relations system have had a lot of that balance shifted away from them," says McDonald. "The next shift is in part about challenging the rise of technology, and the fact that it means work is always with you."