23 Oct 2025One of the items on our website – Can your boss force you to work weekends? – continues to attract enquiries, despite being published in 2012. This article is an update.
Discussing whether or not employees can be made to work out of hours requires reference to the way in which the “rules” around employment are developed, communicated and enforced. This process is discussed in our recent article Exactly what is employment law? Piecing together the employment law jigsaw puzzle.
Fair Work Act covers majority of Australian workers
In examining the broader question of the rules around hours of work which presently apply to Australian employees, a good starting point is the central piece of legislation for all workers, the Commonwealth Fair Work Act 2009.
It is worth noting that the FW Act doesn’t cover employees of state and local government instrumentalities, whose terms and conditions are established under state legislation.
Although there isn’t presently a great deal of difference between the two systems, references in this present item are to the FW Act, which covers the overwhelming majority of Australian workers. Also, when we talk of the FW Act, we are talking the FW Act itself, as well as the systems of Modern Awards, Enterprise Agreements and the like, which are established by the FW Act.
Limit to number of hours per week employees can be required to work
A substantial chunk of the FW Act is taken up by what are called the National Employment Standards (NES), which deal with what are, in effect, the minimum terms and conditions of work. The NES are at Part 2-2 (sections 59-131) of the FW Act. As might be expected, pretty much the first cab off the rank is the matter of weekly hours of work.
Section 62 effectively caps weekly hours at 38 by saying that an employer must not “request or require” a full-time employee to work more than 38 hours in any given week, but goes on to say “unless the additional hours are reasonable”.
Using wording which might strike some as rather less than totally transparent, what section 62 says, in effect, is that the maximum weekly hours for full-time workers are 38 per week, but that an employee can be asked, or directed, to work more hours than 38 in a given week, without any additional pay, as long as the hours requested or ordered are reasonable.
“Reasonable” requests for additional hours of work per week
An understandable reaction is of course to think that the “reasonable” test is rather woolly and imprecise; and there’s certainly some basis for this reaction.
It’s fairly easy to make a call using extreme examples: a one-off request to an employee to stay back for half an hour after quitting time to complete preparation of a surface due to be painted on the following day is clearly reasonable; but a requirement that a particular employee stay behind every day in order to turn everything off and shut everything up after everybody else has left work, isn’t.
Of course in this last example, it might be quite different if the worker is employed as a caretaker of some kind, and the employment contract provides additional pay in recognition of this duty. Or the worker’s working hours are flexible, or averaged out over some period, both of which are possible under the FW Act.
What is the “working week”?
We have got this far without talking about what the working week actually is, and the FW Act itself really doesn’t deal with this, at least in so many words.
However, the extent to which a Monday-to-Friday, nine-to-five working week is embedded in our culture is evident from the numerous references in popular music to the nine-to-five routine and a universal dismay at the arrival of Monday.
So people generally understand what is meant by the “working week”. But to get to the issue which prompts questions about being required to work on weekends, we need to set aside some other aspects of out-of-hours work.
Paid out-of-hours work: regular shift work
We need first to set aside shift work. Awards governing the terms and conditions of work in businesses and industries which need to operate routinely on hours substantially in excess of the Monday-to-Friday 9-to-5 regime, or indeed 24/7, make provision for shift penalties or loadings.
The purpose of penalties and loadings generally is to remunerate employees for working during hours, and on days, when most employees would prefer to be at leisure because that’s when most people are socialising.
The most obvious aspect, reflected in the topic of the item which is the subject of this update, is the weekend, when workers expect to be able to forget about their job and engage in whatever private activities they might choose.
However, for employees in industries such as mining and manufacturing, the 24/7 nature of operations means that these unusual hours are in fact the ordinary working hours of the people who work in them.
Paid out-of-hours work: on-call and similar arrangements
Many other areas can require significant work attendance at all hours of the day and night, but this is not routine in the way that is the case in the industries described above. The most obvious examples are in the emergency services, where workers are obliged to be contactable, and ready to attend work at a moment’s notice, if the need arises.
For being in this state of readiness a worker is paid an “on-call” allowance and, when called out, usually paid for a minimum period of, say, three or four hours, irrespective of the actual duration of the call-out.
While people of this kind may in a sense be paid for doing nothing if they do not receive a call out, it must be remembered that the obligation is to be ready, requiring that they be contactable, have the means of attending at the required location, be not impaired by alcohol or drugs; and so on.
Another approach is simply to provide a higher “all-up” or “all incidents of employment” rate of pay, by way of compensation for odd or unusual work patterns, without the need for complex overtime arrangements.
These are sometimes used for people who are not in any sense emergency workers, but still can have seriously unpredictable patterns of work, for example journalists or parliamentary support staff.
Paid out-of-hours work: overtime and time in lieu
Arguably the most obvious example of paid out-of-hours work is overtime. As with shift penalties and loadings, overtime rates are calculated using a multiplier putting a percentage on top of a regular rate of pay, to reflect the fact that the work is being performed during what would ordinarily be leisure hours.
Overtime might be worked at any point during the week, although it is typically thought of as being an extension, into leisure hours, of the ordinary working week.
A common alternative to overtime is “time in lieu”, where an employee being asked to work out of ordinary working hours is asked to do so for an ordinary rate of pay (ie not a rate “loaded” for overtime) on the basis that the extra hours worked can be compensated for by allowing the employee to take an equivalent period off, during ordinary working hours, at a time convenient to the employer, and to be paid as though work was being performed.
If agreed to, this may suit the employer by freeing it from the obligation to pay the higher overtime rate, and may also suit the employee by providing freedom to attend to personal commitments during ordinary working hours.
We say “if agreed to”, because if some “industrial instrument” – a catch-all term for a set of rules binding on an employee, such as an Award or an Enterprise Agreement – specifies overtime for out-of-hours work, there must be genuine, and not coerced, agreement to an alternative.
Unpaid out-of-hours work
In the history of what we would recognise as modern organised labour, the issue of employees being asked (or pressured or required) to work, or to remain engaged with their job out of hours without being paid is relatively recent. (Please see Exactly what is employment law? Piecing together the employment law jigsaw puzzle.)
The ability of an employer to contact an employee has been around for a long time to some extent via the landline home telephone.
However, it’s only since the proliferation of personal mobile phones (arguably from the early 1990s onward) and, more pervasively, internet-based email systems, that there has been a significant means of imposing an expectation that employees will remain engaged with their work in the evening, and on weekends.
Technology creates unspoken expectation that workers permanently available
Anecdotally, it seems that the problem which loomed large in the minds of many people was not some explicit direction by an employer to an employee, but instead an unspoken expectation that the employee will have the mobile phone in their pocket at all time; will answer if the boss should call; and will keep an eye on the work email system just in case something urgent comes in.
Underlining this concern is an apprehension that, should the employee in question miss a call or an email, this would incur the boss’s displeasure.
Very clearly, concern about this led to the enactment, a couple of years ago, of amendments to the FW Act providing the so-called “right to disconnect”. (These amendments were part of the Australian Labor Party’s Federal election promise to enact “Closing Loopholes” legislation, which it said was aimed at useful reforms which had remained overlooked.)
The right to disconnect
In 2024 we published an item, What is the new right to disconnect? about these particular amendments. The amendments operate through the insertion, into Modern Awards, of clauses giving employees the right to decline to respond to contacts made with them, out of hours, by their employers.
As is clear from that item, the notion of what is, and is not, “reasonable” plays a prominent role in interpretation: in this case, as to whether contact made out of hours by an employer is, or is not, “reasonable”.
It is true that the meaning of “reasonable” can seem baffling, and the term is, not infrequently, seen as a device used by lawyers in circumstances when clear explanation is beyond them; and it’s certainly true that lawyers and courts have, for many decades, struggled with the term.
In a phrase the language of which reveals its age, an English jurist said that the “reasonable man” was “the man on the Clapham omnibus”.
One Australian translation was “the man on the Bondi tram”; also dated by the “tram” reference. Another attempted explanation has been that “reasonable” means “reasonable in all the circumstances” which, again, might not seem to shed much light.
So, can your boss force you to work weekends?
Assuming of course that you are a Monday-to-Friday worker, the one-word answer, in the absence of any industrial instrument conferring that power on your boss, is “no”.
That doesn’t mean that your boss isn’t entitled to contact you to ask, or that it might not be a reasonable request. At one end of the spectrum, there could be some weekend emergency requiring immediate action using a particular piece of software to which your boss cannot find the password, but thinks that you will likely know what it is. That is probably not unreasonable.
At the other end, contacting you on the weekend about something not requiring any action until the following Friday would seem almost certainly unreasonable.
Analysis of specific circumstances helpful in determining reasonableness
This is, in a way, what’s meant by talking about something being reasonable “in all the circumstances”.
It’s much easier to say whether something is reasonable or not given a specific set of facts, than to formulate some abstract proposition about how to tell whether something is or isn’t reasonable.
It is often said, in a cynically humorous way, “when all else fails, read the instructions”. In this particular context, read the “rules”: the terms and conditions of your employment as set out in your employment contract or the applicable Award, as well as in your employer’s policies and procedures, which may not have quite the same force, but which you may have agreed to comply with through what your employment contract says.
If there’s still a problem, your employer may have a complaint or grievance resolution policy. And if that doesn’t help, a lawyer may be able to assist.
