Employees: Reasonable Additional Hours

Earlier this year, the federal court looked at (among other things) what constitutes reasonable additional hours in accordance with the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) ("FW Act").

In Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512 (6 May 2022), a meat processing worker was hired after arriving from Ghana and was provided with a contract that stated his ordinary hours were to be 50 hours per week.

Under section 63 of the FW Act an employer must not request or require an employee to work more than 38 hours in a week unless the additional hours are reasonable.  This is a subjective assessment and the burden of proving hours are ‘reasonable’ is on the employer. Under the FW Act the court has wide discretion and may consider the following factors when making as assessment of what is reasonable:

  • any risk to employee health and safety;

  • the employee’s personal circumstances, including family responsibilities;

  • the needs of the workplace;

  • 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;

  • any notice given by the employer of any request or requirement to work the additional hours;

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

  • the usual patterns of work in the industry;

  • the nature of the employee’s role, and the employee’s level of responsibility;

  • whether the additional hours are in accordance with averaging terms included under section 63 in a modern award that applies to the employee, or with an averaging arrangement agreed to by the employer and employee; and

  • any other relevant matter.

The court held that “On balance, … I am persuaded that it was unreasonable of [the employer] to require or request [the applicant] to work 12 hours a week every week over and above the 38 stipulated by the Award”. Moreover, the court made a point of stating that the hours cannot be reasonable simply because the agreement indicated they are the “ordinary hours”.
In this case, the court considered that:

  • there was a WHS risk, as the employee was fatigued and used sharp knives and undertook heavy lifting as a significant part of the role;

  • the employee was entitled to overtime under the award, and the employer had not complied;

  • although the employer communicated these hours and the employee did not refuse the additional hours, the court considered the employees recent arrival in Australia, and the employers failure to provide a Fair Work Information Statement to be material in the employees’ actions;

  • the employee's role or level of responsibility did not indicate a need for additional hours to be worked;

  • the hours were not typical of usual patterns of work in the meat industry;

  • the employee was obliged to work 12 additional hours every week which represented a significant increase over a normal working week; and

  • the employee never had two-day break from work and started work at 2:00 a.m.

The employer was found guilty of breaching s62 of the FW Act.

It is important to remember that this is a subjective assessment and will be based on the facts of the case and its application to established principles of law. The Court has typically looked at all relevant factors as a whole, rather than one isolated event or factor. However, it is important to keep in mind the relevant factors when considering if it is reasonable to request or require employees to work additional or excess hours. Employee’s also have a right to refuse to work additional hours if it is unreasonable. Trying to force additional hours could potentially open employers up to other claims under the FW Act.

Tina Cooper