When do reasonable additional hours become unreasonable?
For most full-time Australian workers, a 38-hour work week is the standard, but in reality, many professions and industries require employees to work more than this.
You might have noticed a clause in your employment contract that states your employer can require you to work ‘reasonable additional hours’ in addition to your 38-hour week. This clause is common for salaried positions in order for employees to complete their duties and is often worded in line with statutory provisions in the Fair Work Act 2009 (Cth) (Fair Work Act).
How do you know if additional hours are unreasonable?
The short answer is it depends on your role, personal circumstances and the nature of the business you work for, as determined on a case-by-case basis.
Section 62 of the Fair Work Act sets out the maximum weekly hours that an employer can request an employee to work as 38 hours in any given week unless the additional hours are considered reasonable and a list of considerations for what makes additional hours reasonable or unreasonable. These include:
- risk to the employee health and safety from working the additional hours
- the employee’s circumstances, including their family responsibilities
- the needs of the workplace or enterprise
- whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours
- the amount of notice given by the employer of any request or requirement to work additional hours or by the employee of their intention to refuse to work the additional hours
- the employee’s usual patterns of work in the industry, or the part of an industry, in which they work
- the nature of the employee’s role, and their level of responsibility
- whether the additional hours are in accordance with terms in a modern award, enterprise agreement or other employment agreements, or
- any other relevant matter.
Importantly, the Fair Work Act provides that an employee can refuse to work additional hours if they are unreasonable for any of the above reasons.
Has anyone successfully disputed unreasonable additional hours?
Several high-profile cases have tested the limits of what is considered reasonable additional hours.
In Australasian Meat Industry Employees Union v Dick Stone Pty Ltd, the Federal Court of Australia examined reasonable additional hours in the context of the meat industry. Although the Court found the 50-hour work week necessary for the needs of the business, they ultimately found that requiring a production floor employee to work a 50-hour week across six days was unreasonable because of the health and safety risks, the employee’s position within the company and because he was not being paid overtime rates for the additional hours of work.
While the question of whether additional working hours are reasonable depends on the circumstances of each case, employees should be aware of what factors makes extra hours unreasonable and their right to refuse. Adverse action taken against an employee who refuses to work additional hours may constitute a breach of section 340 of the Fair Work Act, which protects employees from dismissal because they have exercised a workplace right.
Written by Andrew Jewell
Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.