The National Employment Standards state that an employer must not request or require a full-time employee to work more than 38 hours per week unless the additional hours are reasonable. Despite many employees regularly working more than 38 hours per week, there is little case law testing when additional hours are considered to be “reasonable”.

Background

In a recent case[1] the Federal Court of Australia considered this issue in the context of an employee whose employment contract required that he work 50 ordinary hours per week plus reasonable additional hours. The employee was covered by the Meat Industry Award 2010 (“Award”) and the Fair Work Act 2009 (Cth) (the “Act”).

In addition to being required to work extended hours, the employee was required to start work at 2.00am which was outside the ordinary hours of work prescribed in the Award. There was no reference in the employment contract to the ability of the employee to refuse to work additional hours or to the criteria set out in the Act that must be considered in determining whether or not additional hours are reasonable. No overtime was paid to the employee.

Section 62(3) of the Act sets out ten factors to take into account when considering the reasonableness of a request or requirement to work additional hours. These factors include:

• risks to health and safety
• the personal circumstances of the employee
• the needs of the workplace
• whether the employee receives additional payment
• notice given of requirement to work additional hours
• the usual patterns of work in the industry

While it is possible for employers to agree with employees to increase the ordinary hours of work above 38 hours per week to include reasonable additional hours, the obligation remains for the employer to ensure the employee is being paid at least the minimum Award entitlements and to be able to demonstrate that the additional hours are reasonable in all the circumstances.

Decision

In this case, Justice Katzmann found that in all the circumstances it was unreasonable to request or require the employee to work additional hours of 12 hours per week.

Her Honour emphasised that consideration of what is reasonable in relation to a request or requirement to work additional hours will depend upon the individual circumstances taking into account all relevant matters, including those set out in s. 62(3). In this case those circumstances included that the employee was a recent immigrant to Australia (and therefore unaware of fair work requirements), there was an unacceptable health and safety risk given the “unsociable” hours he was required to work, he was not paid any overtime or penalty rates and was not able to refuse the additional hours.

Lesson for employers

Where an employment contract provides for greater than 38 hours per week, employers should consider:

• are the additional hours reasonable taking into account all of the circumstances?
• Is the employee able to refuse to work additional hours if the employee believes it is unreasonable?
• Is the employee being paid their minimum entitlements under the applicable award, taking into account any entitlement to overtime or penalty rates?
• Is there an offset clause in the employment contract that allows the employee to offset any over-award payments in the event of a claim?

If you would like to discuss these or other workplace issues please contact Andrew Bland or call 02 9412 3077.

[1] Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512