Legal Update: Recent Developments on Reasonable Additional Hours

In April 2025, a Melbourne law firm, Erudite Legal, was hit with over $50,000 in penalties and interest for breaching the Fair Work Act — including forcing a lawyer to work extreme and unreasonable hours.

The Court in Readdie v People Shop Pty Ltd (Penalty) [2025] VMC 3 stated “the ‘unreasonable hours’ contravention was particularly egregious.”

The employee was in her first legal role and, over a period of three weeks, was made to work an average of 66 hours per week, including two days that exceeded 24 hours straight. She was also instructed to watch an ice hockey movie at 1a.m. on a Sunday while maintaining communication with her supervisor.

These excessive working demands worsened her pre-existing medical condition, disrupted her ability to care for her mother post-hospitalisation and she was even required to work despite having sought and obtained leave to attend her former partner’s funeral. As the Court said, the hours she was required to work were “self-evidently excessive”.

While this case is extreme, it highlights the importance of understanding what constitutes “reasonable additional hours” under the Fair Work Act 2009 (Crh) (Fair Work Act), as well as broader legal obligations.

What are “reasonable additional hours”?

Under s62 of the Fair Work Act, full-time employees cannot be required to work more than 38 hours per week unless the additional hours are reasonable. An employee may refuse to work additional hours if they are unreasonable.

What is “reasonable” is not left to employer discretion — it must be assessed against factors including:

• Any risk to the employee’s health and safety

• The employee’s personal circumstances

• The needs of the workplace

• Whether the employee is entitled to compensation for working additional hours (overtime, penalty rates etc)

• Notice of the additional hours, or the employee’s notice of their refusal to work the additional hours

• Usual patterns of work in the industry

• Nature of the employee’s role and level of responsibility

Recent case law

Case law on “reasonable additional hours” is relatively limited; however some recent claims have brought renewed focus to this area:

• In 2022, the Federal Court found that an employer breached the Fair Work Act by requiring a newly arrived migrant worker to routinely work 50 “ordinary work hours” over 6 days, with some shifts starting at 2am. The additional hours were unreasonable because of the risk to health and safety arising from fatigue, lifting heavy weights and using knives. The employer was ordered to pay $93,000 in penalties for the various breaches. Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512

• In March 2023, the Finance Sector Union (FSU) filed proceedings against National Australia Bank alleging four managers worked unreasonable additional hours, with their hours ranging from 10 to 16 per day. This case is ongoing, with a case management hearing listed for 9 May 2025, and could set a significant precedent for white-collar industries, where long hours are often normalised. If they win this case, the FSU will be demanding the bank compensate up to ten thousand staff.

• In April 2023, political staffer Sally Rugg alleged she was required to work unreasonable additional hours - reportedly more than 70 hours per week - while employed as Chief of Staff to MP Monique Ryan. Although the case was ultimately settled for $100,000, it drew attention to the reasonableness of working hours in high-responsibility roles.

An employee working long hours doesn’t automatically mean a breach of section 62 of the Fair Work Act. In Reynolds v Harrier Group Pty Ltd [2023] FedCFamC2G 930, the Court dismissed a claim involving 70-hour work weeks, noting the employee had significant autonomy over the additional hours she worked and was not directed or required by the employer to work those hours.

Broader legal considerations

In addition to whether additional hours are reasonable, employers must also consider:

• whether working hours pose any psychosocial hazards. Under work health and safety laws, employers must ensure, so far as is reasonably practicable, the health and safety of workers. “Health” includes psychological health. Psychosocial hazards, which can lead to psychological harm, including job demands such as long hours.  

• workers’ compensation claims – employees may make a workers’ compensation claim where they are injured at work, including where they have suffered psychological injuries.

• employees exercising their right to disconnect – since August 2024 (and from August 2025 for small businesses), employees have had a legal right to refuse contact from their employer outside of working hours, unless that refusal is unreasonable. This reflects growing societal expectations around working hours.

• duty of care – employers have a duty under common law to take steps to avoid foreseeable harm to employees. This may include harm from overwork.

Key takeaways

In some industries long hours of work are treated as business as usual. In the most recent survey commissioned by the Centre for Future Work at the Australian Institute, employees reported they performed 3.6 hours of unpaid work, equating to almost five standard 38-hour work weeks per year.

The combination of legal reform, union activity, and heightened awareness of psychosocial risks is reshaping employee expectations, and the law, around working hours.

In mitigating legal risks, employers should be asking:

• What hours are employees actually working?

Remote and hybrid work arrangements can make this difficult to monitor. Nevertheless, if employees are consistently working excessive hours to meet their workload — even without explicit direction — an employer may still be liable for overtime.

• Are additional hours reasonable?

Employers should assess additional hours of work against the criteria in section 62 of the Fair Work Act (set out above), including health and safety risks, personal circumstances, and industry norms.

• Are employees covered by a modern award or enterprise agreement?

These instruments may entitle employees to overtime, penalty rates, or other compensation for additional hours.

• Have set-off clauses in employment contracts been reviewed?

If employees are paid a salary or higher rate in compensation for working additional hours or entitlements such as overtime, then the employment contract must have an effective set-off clause. Otherwise, employees may still be able to make claims for overtime.

• Record keeping obligations?

Under the Fair Work Regulations, employers must keep records of overtime hours worked where a penalty rate or loading is payable. For example, if a modern award entitles an employee to overtime for working particular hours, those hours of work may need to be recorded.

If an employer does not make records in accordance with legal obligations, the employer will have the burden of disproving the alleged hours worked (s557C of the Fair Work Act) – this is a difficult task.  

• Psychosocial hazards

Under work health and safety laws, employers have a duty to ensure, so far as is reasonably practicable, the psychological health and safety of workers. This includes identifying, assessing, and controlling psychosocial hazards — such as excessive job demands, including long or unpredictable working hours.

The recent case involving Erudite Legal is a timely opportunity for employers to assess whether their working practices, and expected working hours, comply with legal requirements.