Australian working time law is governed by the Fair Work Act 2009 and its supporting regulations, alongside a system of awards and enterprise agreements that fill in industry-specific detail. The headline framework is the National Employment Standards (NES), which apply to most workers regardless of award coverage. Among the NES is the 38-hour working week, a deceptively simple figure that comes with the more flexible "reasonable additional hours" provision.
This post explains the NES limits, how awards and enterprise agreements interact, what the Fair Work Ombudsman expects on records, and where the 2023 "Closing Loopholes" reforms have tightened the regime.
Try Timesheet Free
30-day free trial. No credit card required.
Quick Reference
| Rule | Value | Reference |
|---|---|---|
| Maximum weekly working time (full-time) | 38 hours + "reasonable additional hours" | FW Act s 62 |
| Daily and weekly maximums | No federal cap (award/EA defined) | (none) |
| Daily rest | Not specified federally (award/EA defined) | (none) |
| Weekly rest | Not specified federally (award/EA defined) | (none) |
| Break minimums | Award and enterprise agreement | (varies) |
| Annual paid leave | 4 weeks (5 weeks for shift workers) | FW Act s 87 |
| Personal/carer's leave | 10 days per year | FW Act s 96 |
| Public holidays | 8 national + state holidays | FW Act s 115 |
| Record retention | 7 years | FW Regs 3.32 |
| Civil penalty | Up to AUD 93,900 (individual), AUD 469,500 (body corporate) | FW Act s 539 |
The National Employment Standards
The NES (Part 2-2 of the Fair Work Act) sets the minimum entitlements that apply to all national-system employees. There are 11 standards:
- Maximum 38 hours per week
- Right to request flexible working arrangements
- Casual conversion
- Parental leave and related entitlements
- Annual leave
- Personal/carer's leave, compassionate leave, family violence leave
- Community service leave
- Long service leave
- Public holidays
- Notice of termination and redundancy
- Fair Work Information Statement
For time tracking purposes, items 1, 5, 6, 8, and 9 matter most.
The 38-Hour Week and "Reasonable Additional Hours"
Section 62 of the Fair Work Act sets the cap at 38 hours per week for full-time employees, with proportional reduction for part-time. But the same section permits "reasonable additional hours", a phrase that has spawned considerable litigation.
Factors considered "reasonable":
- Any risk to employee health and safety
- The employee's personal circumstances (family responsibilities, etc.)
- The needs of the workplace
- Whether the employee is entitled to overtime pay under the applicable award
- Notice given of additional hours
- Usual patterns of work in the industry
- Nature of the employee's role
In practice, the 38-hour week is the starting point; awards and enterprise agreements set the overtime trigger and premium. Most awards trigger overtime at hours over the daily maximum (typically 8 hours), the weekly maximum (38 or 40), or after a span of hours (typically 10).
Awards and Enterprise Agreements
Australia has approximately 120 modern awards covering different industries and occupations. An award typically specifies:
- Ordinary hours of work (usually 38 per week, can be averaged)
- Daily span and limits
- Break minimums
- Overtime triggers and rates (typically 1.5x for the first 2 hours of overtime, 2x thereafter)
- Penalty rates (Saturdays, Sundays, public holidays, night)
- Allowances
Enterprise agreements (EAs) are negotiated at the workplace level and can modify award terms (subject to the Better Off Overall Test, the BOOT). EAs cover about 25 percent of the Australian workforce.
For employees covered by neither an award nor an EA, the NES applies directly. This is rare; most workers are covered by at least an award.
Annual Leave (Section 87)
- 4 weeks of paid annual leave per year of service
- 5 weeks for shift workers (defined narrowly)
- Accrues progressively
- Cannot be cashed out under most awards (cashing-out provisions exist in some awards with restrictions)
Annual leave loading (typically 17.5 percent) is paid on top of regular wages during leave periods under most awards.
Personal/Carer's Leave (Section 96)
10 days per year of paid personal leave, accruing progressively. Can be used for:
- Personal illness or injury
- Caring for an immediate family or household member who is ill or injured
- Family emergency
The right to access this leave is broad; medical certificates can be requested for absences beyond a few days.
Long Service Leave
A uniquely Australian entitlement. After 10 to 15 years of service with one employer (varies by state), employees become entitled to a period of paid long service leave, typically 8 to 13 weeks. State law (not the Fair Work Act) primarily regulates LSL.
Record-Keeping (Fair Work Regulation 3.32)
The Fair Work Regulations are detailed about what employers must record:
General records:
- Name of employer and employee
- Australian Business Number of employer
- Type of employment (full-time, part-time, casual, fixed-term)
- Commencement date
Pay records:
- Gross and net amounts paid
- Deductions
- Pay period
- Date of payment
Hours records:
- Hours worked per period for non-salaried employees
- Overtime hours (start and end times)
- Daily total
Leave records:
- Annual leave taken, balance, payment
- Personal leave taken, balance
- Other leave categories
Other records:
- Award or enterprise agreement covering the employee
- Public holidays paid
Records must be kept for 7 years. The Fair Work Ombudsman has full inspection powers.
CCOO and Australia
Australia is not bound by the European CCOO ruling. But Australian compliance culture has independently moved in the same direction: post-2017 Fair Work Amendment (Protecting Vulnerable Workers) Act introduced stricter recordkeeping penalties (up to AUD 12,600 per breach for individuals, AUD 63,000 for bodies corporate), making missing or false records a serious compliance risk.
The 2023 Closing Loopholes Reforms
The Fair Work Legislation Amendment (Closing Loopholes) Act 2023 (No. 1) and the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024 added several layers:
- Right to disconnect (effective August 2024): employees can refuse to monitor, read, or respond to work-related communications outside their working hours, unless the refusal is unreasonable
- Same Job, Same Pay: labour-hire workers must receive the rate they would receive as direct employees
- Casual employment redefinition: tighter definition of casual employment, with conversion rights
- Wage theft criminalization: intentional underpayment is now a criminal offense (effective 2025), with imprisonment up to 10 years for serious cases
The right to disconnect law has been the most discussed. It does not prohibit after-hours contact; it gives the employee the right to refuse. In practice, employers must consider whether the contact is "reasonable" before sending.
Inspection and Penalties
The Fair Work Ombudsman (FWO) is the federal enforcement body. State-based industrial relations commissions handle non-national-system employees.
Civil penalties under section 539:
| Breach | Maximum penalty |
|---|---|
| Standard breach (individual) | AUD 93,900 (300 penalty units, penalty unit ~AUD 313) |
| Standard breach (body corporate) | AUD 469,500 |
| Serious contravention (individual) | AUD 939,000 |
| Serious contravention (body corporate) | AUD 4,695,000 |
| Wage theft (intentional, post-2025) | Criminal: up to 10 years imprisonment |
Penalties stack per breach and per worker. A company that underpaid 100 workers each by AUD 5,000 can face millions in penalties plus the back wages.
Practical Compliance Checklist
- Identify the applicable award or enterprise agreement. Almost every worker has one.
- Track ordinary hours and overtime separately. Different premiums apply.
- Apply penalty rates for weekends, nights, and public holidays. Award-defined.
- Honor the right to disconnect. Document expectations and after-hours contact policies.
- Retain all records for 7 years. Mandatory under FW Reg 3.32.
- Audit annually for underpayment. Wage theft is now criminal; the FWO does not warn before prosecuting.
Common Questions
Are casual workers covered by the NES? Most NES standards apply to casuals; annual leave and personal leave do not. Casuals receive a loading (typically 25 percent) instead.
Are independent contractors covered? Genuine independent contractors are outside the NES. Misclassification (a contractor who is de facto an employee) is increasingly being challenged; the FWO actively investigates.
What about high-income employees? The NES applies to all national-system employees. The high-income threshold (AUD 175,000 for 2024-25, indexed annually) affects whether the worker is covered by a modern award but not the NES.
Are public holidays paid? Yes, for workers normally rostered to work on the day. Public holiday work usually attracts higher rates (typically 2.5x).
Does the right to disconnect apply to all employees? It applies to all national-system employees from August 2024 (large employers) and August 2025 (small business with under 15 employees).
Summary
- The Fair Work Act 2009 sets the NES with 38-hour weeks plus "reasonable additional hours"
- Awards and enterprise agreements fill in industry-specific overtime and break rules
- 4 weeks annual leave (5 for shift), 10 days personal leave, paid public holidays
- 7-year record retention; civil penalties up to AUD 939,000 (individual) or AUD 4,695,000 (body corporate)
- Right to disconnect since 2024; wage theft criminalized 2025
- Fair Work Ombudsman enforces
Sources
- Fair Work Act 2009 on legislation.gov.au
- Fair Work Regulations 2009
- Fair Work Ombudsman
- Fair Work Legislation Amendment (Closing Loopholes) Act 2023 and Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024
Where to Go Next
- Right to disconnect: new laws in France, Spain, Australia for the cross-border view of disconnection laws
- How to calculate overtime correctly in 2026 for the math across awards
- Ireland's Organisation of Working Time Act 1997 for a different common-law system