I'm working over 38 hours a week but not getting overtime pay. Is this legal?

What the Law Says

The Fair Work Act 2009 and modern awards set the legal rules for overtime in Australia. Most full-time and part-time employees are entitled to extra pay for hours worked beyond their ordinary hours — usually 38 per week — unless an award, enterprise agreement, or contract says otherwise.

Under the National Employment Standards (NES), the standard full-time working week is 38 hours. However, the NES itself does not directly set overtime rates — those come from modern awards or enterprise agreements.

Most modern awards require employers to pay overtime for hours worked outside 'ordinary hours', which are often defined as 38 hours per week, Monday to Friday, 9am–5pm — but this varies by industry and role.

For example, the General Retail Industry Award 2020 says: 'An employee must be paid overtime rates for all time worked in excess of the ordinary hours of work.' It also specifies that overtime is payable at 1.5 times the base rate for the first two hours and double time thereafter on weekdays, and higher rates on weekends and public holidays.

Statutory Text

The standard hours of work for a full-time employee are 38 hours per week.

— Fair Work Act 2009 (Cth), s. 62(1) — Maximum weekly hours

Statutory Text

An employee must be paid overtime rates for all time worked in excess of the ordinary hours of work.

— General Retail Industry Award 2020, cl. 30.1

What to Do

Sources