The maximum number of weekly hours an employee can perform is 38 hours according to the National Employment Standards (NES).

For part-time employees, their maximum is typically based on the lesser of either 38 hours or their own normal ordinary hours.

While it is possible for an employer to request that an employee work beyond this limit, it’s important to be aware that this request is subject to certain factors that influence just how reasonable these hours are and the employee’s ability to refuse the request. 

A recent case in the Federal Court of Australia ruled against an employer for breaching these provisions. 

The case

An immigrant worker was employed as a knife hand/labourer for a meat wholesaler.

Over the course of more than three years, they were engaged to work 50 ordinary hours per week—12 hours beyond the maximum number of weekly hours.

It was also determined that they were underpaid.

While the employer extended an apology and didn’t have a history of contravening any workplace relations legislation, other considerations were at play.

The former employee argued that they had no choice about the number of hours they worked and had a limited understanding of Australian industrial relations legislation when they began.

Further, while the Court acknowledged that 50 hours did serve the employer’s business needs regarding retention, it did not necessarily make the hours reasonable.

The significant work health and safety risk was also a substantial factor in determining that the hours were unreasonable—even if a serious injury hadn’t occurred yet, that didn’t mean there wasn’t any risk. 

As such, a penalty did apply for various breaches of the NES and the relevant modern award, including a breach of the maximum weekly hours, and the employer was required to rectify the underpayment. 

Breaching the NES by making unreasonable requests for additional hours can legally expose an employer to financial penalties even if they’re adequately compensating the employee monetarily.

Breaches of the NES are treated seriously because alongside modern awards, they are intended to be a minimum safety net for employees. 

What makes a request more or less reasonable?

There are a number of factors outlined in the Fair Work Act 2009 that will affect whether a request to perform additional hours is considered reasonable.

The same factors are also considered when an employee is refusing a request to perform additional hours.

All relevant factors should be taken into account when determining the reasonableness of a request, although some may have greater weight than others depending on the role and duties performed as well as the industry or profession.

These factors include:

Any risk to employee health and safety

A request should consider any impact on the employee’s health and safety.

For example, a request to work additional hours may be more reasonable on top of a four-hour shift than after a ten-hour shift. 

Similarly, if the employee has worked a significant number of hours in recent weeks, a request to work extra hours is less likely to be considered reasonable where there is risk of burnout and excessive fatigue. 

If the employee is operating dangerous equipment, this should also be considered because it can pose a threat to their health and safety if they work while fatigued.

However, even if an employee is performing work that doesn’t require them to leave a chair, these situations have work health and safety considerations of their own when it comes to extended work patterns. 

The employee’s personal circumstances, including family responsibilities

An employee may have responsibilities such as caring for children that make a request for additional hours less reasonable.

A late request to work overtime is not as likely to be considered reasonable if an employee has made prior plans to pick up their children. 

The needs of the workplace or enterprise

Urgency and demand for the additional hours can make them more reasonable.

The more urgent the task or duties are, the more likely it is that the request for additional hours will be considered reasonable.

However, even if additional hours are worked because it’s too difficult to find an extra staff member in a tough recruitment climate, they can still be unreasonable. 

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

This looks at whether the employee will receive overtime rates or other compensation for the work as per the award.

Alternatively, they may be paid an above-award rate or salary with the expectation that they will perform reasonable overtime when required. 

Any notice given by the employer to work the additional hours or any notice given by the employee of his or her intention to refuse to work the additional hours

 Late requests to perform additional hours may be difficult to justify, just as a late refusal by an employee to work additional hours is less likely to be reasonable because it imposes on the employer greater difficulty in finding alternative arrangements. 

The usual patterns of work in the industry 

This takes into account how common it is to work additional hours in the industry.

Please note, however, that there are limits to this and the trends of the sector won’t ever be considered total justification for excessive work hours. 

The nature of the employee’s role and the employee’s level of responsibility

It may be more reasonable to ask an employee with a higher level of responsibility to perform additional hours as well as an employee in a role subject to unexpected surges in demand (as opposed to one not subject to customer service or productivity demands). 

Whether the additional hours are in accordance with averaging provisions included in an award or agreement that is applicable to the employee or an averaging arrangement agreed to by an employer and an award/agreement-free employee

An averaging arrangement may state that an employee is expected to work 76 hours per fortnight, in which case they could be required to work more than 38 hours in one week but fewer hours the following week. 

Lastly, the Fair Work Act 2009 also provides scope for ‘any other relevant matter’ to be taken into account with a request for additional hours. 

What next for employers?

Look into how much overtime is worked in your own workplace on a regular basis and, in particular, whether there is an argument that the additional hours could be considered unreasonable.

Keep track of an employee’s weekly hours of work on an ongoing basis and ensure that all staff are being adequately compensated for additional hours. 

If staff are being paid an above-award rate of pay or salary package to compensate for additional hours, make sure there is a set-off clause in their contract to reflect the arrangement.

Contact the HR in Practice Service for assistance with this. 

Ensure that staff are given adequate notice of a request to work additional hours and that they have the opportunity to refuse the request if necessary. 

Content supplied.

The HR in Practice specialist workplace relations and work (occupational) health and safety advisory service is operated by Wentworth Advantage. 

APA Business Group Premium Principal members can contact the HR in Practice service on 1300 138 954 or hrinpractice@australian.physio or visit here to access the full suite of online resources.

For more information about joining the APA Business Group, email info@australian.physio or call 1300 306 622. 

Disclaimer: The material contained in this publication is general comment and is not intended as advice on any particular matter, nor should it be relied on as a substitute for legal or professional advice.

Wentworth Advantage Pty Ltd expressly disclaim all and any liability to any persons whatsoever in respect of anything done or omitted to be done by any such person in reliance whether in whole or in part upon any of the contents of this publication.

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