Enterprise agreement overtime disputes often arise in workplaces where employees routinely complete small tasks before or after their rostered shifts. These moments can add up. But whether they attract overtime is a question of how the relevant industrial instrument addresses the issue.

Background

A recent Full Federal Court of Australia (the “Court”) decision concerned overtime provisions in an enterprise agreement. The enterprise agreement covered police officers who were rostered to work in a continuous service environment. The enterprise agreement defined overtime as:

• any time worked which was required and permitted by the employer;
• which was additional to ordinary hours of work or outside the span of hours established by the agreement; and
• amounted to a continuous period of half an hour or more.

The question was whether short periods spent “kitting up” before shifts and “kitting down” after shifts should count towards ordinary hours for the purposes of overtime. These tasks were essential, with officers needing to equip themselves with uniforms, protective equipment and operational gear, but each period was less than half an hour.

The organisation representing the employees argued that these small increments should be aggregated across a fortnight. On that construction, once total hours exceeded the ordinary 80-hour fortnight, the excess time would be paid as overtime.

What the Court found

The Court rejected this approach. While the clause contemplated more than one pathway to overtime (being work additional to ordinary hours or work outside a specified span), both pathways were subject to the same threshold requirement: the work must be a continuous period of at least 30 minutes.

Aggregating minutes across days was inconsistent with the clause’s language and purpose. Allowing cumulative aggregation would effectively convert unpaid additional time into ordinary hours, and then retrospectively convert ordinary rostered time at the end of the fortnight into overtime. That result was found to be “self‑evidently anomalous”.

Importantly, the Court emphasised that the apparent purpose of the 30‑minute requirement was to exclude minor or incidental overtime claims, even where those claims might add up across a pay period.

The Court confirmed that where an enterprise agreement sets a minimum threshold for overtime, courts will not read in a right to aggregate smaller periods unless it is clearly allowed by the agreement.

Why drafting precision matters

This decision highlights a simple truth: clauses in enterprise agreements rise or fall on their wording. Where parties intend for time worked before or after shifts to be payable, even in short increments, that intention must be clearly reflected in the text. Courts are reluctant to “fill the gaps”.

For employers, this reinforces the importance of testing overtime clauses against real operational scenarios during the bargaining process. Clauses should be scrutinised to ensure they deliver the intended outcome when applied to day‑to‑day practices.

The decision also reinforces a broader point: time spent performing work-related tasks before and after rostered hours may constitute “work”, but that does not automatically attract an entitlement to overtime or additional payment.

Employer takeaways

• Draft with intention and clarity: it is important to be precise and clear about the application of certain entitlements and assume the clauses will be interpreted literally. Clauses that involve payments should be carefully reviewed by employers. If it is not an employer’s intention to provide payments in certain circumstances this should be clearly stated to avoid confusion.
• Test the clause: during bargaining, walk through real workplace scenarios. Identify where ambiguity could arise and address it directly through explicit drafting.
• Quiet liability: enterprise agreements with ambiguous drafting can create a quiet liability for employers. Such obligations can sit unnoticed for years until an employee challenge or dispute brings an issue to the surface causing a significant liability for employers.
• The broader consideration: the issue of time spent before and after an employee’s ordinary hours is not just relevant for specific situations involving enterprise agreements. It applies more broadly and you can read more about the difference between paid working time and unpaid preparation time in our article here.