Worked Past Your Rostered Finish? The Federal Court Says That Is Not Automatically Overtime

What the court decided

Justice Perram held that working hours outside a published roster does not, on its own, make those hours overtime under the retail award. He had already decided the point in the 2025 liability judgment, and the Fair Work Ombudsman tried to recast it while the parties were settling the form of the orders. The judgment sets out the earlier conclusion in full (para 75):

“That conclusion means that the FWO’s contention that any work done outside a published roster is ipso facto overtime cannot be accepted.”

The Ombudsman's submission this time was that the logical consequence of the court's reasoning was that hours worked on a day in addition to rostered hours attract overtime. The court's answer was short: “Since this is the opposite of what I concluded, I do not accept the FWO’s submission” (para 76).

The reason is textual. The overtime clause, clause 29.2(a), “operates by reference to a roster condition, not a roster” (para 75). A roster is the timetable an employer publishes. A roster condition is a rule in the award about how ordinary hours may be rostered. Working past the timetable is not the same as breaking the rule.

The case and who it covers

The judgment is Fair Work Ombudsman v Woolworths Group Limited (Remaining Issues) [2026] FCA 1229, delivered on 27 August 2026 in the Fair Work Division of the Federal Court. It deals with four proceedings heard together: the Ombudsman's regulatory actions against Woolworths and against Coles Supermarkets Australia, and two class actions, Baker v Woolworths and Pabalan v Coles (paras 1 and 3).

The employees are salaried staff who filled “store-based management positions” at both supermarkets (para 1). The award in question is the General Retail Industry Award 2010, and the clause numbers on this page come from that version. The current retail award is the 2020 version, which numbers its clauses differently, and this judgment does not construe it.

This is not the main trial. Liability was decided on 5 September 2025 in [2025] FCA 1092 (para 1). The parties could not agree on the declarations that should give effect to that judgment, and this decision resolves the issues left over after 554 pages of further submissions (para 2).

Which overtime triggers survived

The clearest statement of the outcome is in the Baker class action. Mr Baker asked for a declaration that overtime arises if an employee works in any of three ways. The court accepted two and rejected one (paras 101 and 102):

The court also refused a second proposed declaration that would have made hours worked beyond the rostered number on a day overtime by treating them as breaching a 38-hour week (paras 103 and 104). The same result applied against Coles, where the court said it had “expressly held” that work outside a published roster was not automatically overtime (para 117).

The four-week, 152-hour cycle

Clause 28.1 of the 2010 award gives the employer a choice of rostering arrangements. Woolworths' evidence, which the Ombudsman's own evidence also followed, was that it rostered on a 152-hour cycle over four weeks under clause 28.1(d) (para 77). The Ombudsman at times sought to apply the 38-hour weekly roster in clause 28.1(a) as well. The court rejected reading the options as running at the same time:

“An employer who adopts the cl 28.1(d) 152-hour roster is not subject to the 38-hour roster condition in cl 28.1(a).” (para 77)

The practical consequence for anyone checking a timesheet is set out in the next paragraph:

“The calculation of overtime in relation to the roster condition in cl 28.1(d) is something which will only be known at the end of the roster cycle.” (para 78)

So a long Tuesday is not proof of overtime on its own. On a four-week cycle, the question is whether the employee worked beyond the 152 ordinary hours by the end of the cycle, or broke another roster condition or the span of hours along the way. Whether Coles rostered on a four-week or one-week basis is a question of fact the court left open in case the Ombudsman disputes it (para 118).

An early start is counted once

One worked example in the judgment shows how the triggers interact. A Woolworths employee was rostered from 7am to 4pm on 5 March 2018. She clocked on at 6.09am and off at 4pm (para 40). The parties agreed the 51 minutes before 7am were outside the span of hours and attracted overtime, and the court agreed on the assumption the early start was reasonably needed and not for her own convenience (para 42).

The Ombudsman argued she was owed a further 51 minutes of overtime after 3.09pm, nine hours after she started. The court rejected that because the nine-hour roster condition counts ordinary hours, and the time before 7am was already overtime (para 44). Counting it twice would pay 102 minutes of overtime for 51 extra minutes worked: “The Award does not work this way” (para 45).

Hours that were not reasonably required

The judgment carries forward a limit that cuts both ways. Overtime under clause 29.2(a) “is not payable for hours worked that were not reasonably required”, and the employer “bears the burden of proving that the work was not reasonably required in any particular case” (para 37). Flexible hours worked for personal convenience do not trigger overtime, and so do not trigger the meal allowance either (para 79, quoting the liability judgment at [534]).

For some employees Woolworths accepted it could not meet that burden. For the rest, the court ordered Woolworths to point to the evidence within 14 days, with the Ombudsman to respond 14 days later (paras 37 and 202).

The highest penalty, not all of them

A separate issue arose where a single hour triggered more than one penalty rate. The Ombudsman argued they should be added together. The court disagreed (para 20):

“I prefer the highest rate approach. When a particular hour of work triggers more than one penalty rate, the employer is confronted with simultaneous payment obligations.”

Paying the highest rate discharges the lower ones for that hour. That lines up with how the overtime pay calculator already treats a shift allowance and overtime on the same hours: one rate, the higher one, not both stacked.

The meal allowance follows the overtime finding. Because working an extra hour past the rostered end time is not overtime by itself, it does not trigger a meal allowance by itself either. The allowance needs “overtime”, for example from working beyond the 152 ordinary hours, “or for another reason” (para 82).

What it means in practice

This is a summary of what the court decided, not advice on your own pay. The judgment construes one award for one group of salaried managers. With that limit in mind, three practical points follow from it.

• For workers. Staying back past your rostered finish is not, by that fact alone, overtime under the 2010 retail award. Early starts outside the span of hours, breaches of a daily limit and hours beyond the cycle total still can be, provided the work was reasonably required. Keep your own record of start and finish times, because on a four-week cycle the answer depends on the whole cycle.
• For payroll. A rule that flags every minute past the published roster as overtime does not match the award as the court read it. The check that matters is the roster condition the employer actually chose under clause 28.1, plus the span of hours and daily limits. On a 152-hour cycle, the roster-condition check runs at the end of the cycle (para 78).
• For salaried staff. The court also recorded its earlier holding that Woolworths' salary set-off clause worked only within a pay period, and that the six-month pooling in the contract was ineffective (para 69). Whether a salary covered award entitlements was tested one pay period at a time.

If you want to see what a set of overtime hours is worth after tax once you know they count, use the overtime pay calculator. To lay out ordinary hours and overtime on separate lines so they can be checked, the payslip generator does that. For whether hours count as overtime under your award or agreement, go to the Fair Work Ombudsman or call it on 13 13 94.

What happens next

The orders made on 27 August 2026 (para 202) set this timetable:

• Woolworths: within 14 days, a submission of up to 15 pages on where the evidence shows any employee made the relevant agreements, or worked overtime that was not reasonably required.
• The Ombudsman: a response of up to 15 pages within a further 14 days.
• Declarations: the parties to confer on the form of declarations within 21 days, in the Woolworths, Coles and Pabalan matters.
• Thursday 1 October 2026: all four matters listed for case management.

The judgment does not set a penalty hearing, and it does not fix any amount owed. The court said the amounts due are “a topic which is yet to be tried” (para 65), and it refused to start quantifying the Baker class claims because “Until appeal proceedings are determined, it cannot be known with any clarity what the approach to quantification should be” (para 105). The declarations are meant to provide “a clear platform for any appeals or cross-appeals” (para 62, quoting the liability judgment). Both class actions now cover a claim period ending 28 September 2020 (paras 107 and 200).

Frequently asked questions

Sources

Judgment text read on 25 September 2026. Paragraph numbers are the court's own. Nothing on this page comes from media coverage of the case.

• Fair Work Ombudsman v Woolworths Group Limited (Remaining Issues) [2026] FCA 1229 (27 August 2026), AustLII. Every holding, quotation, paragraph number and order on this page.
• Fair Work Ombudsman: Overtime pay. Where to check how overtime works under your own award or agreement.

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