Under the National Employment Standards (NES), the maximum number of hours of work for a full-time employee is 38 hours per week. What this essentially means is that an employer may not request/require a full-time employee to work more than 38 hours per week unless this request is “reasonable”. So, what does “reasonable” actually mean?
The Fair Work Act and the NES state that, in determining whether additional hours are reasonable or unreasonable, the following must be taken into account:
- any risk to employee health and safety
- the employee’s personal circumstances, including 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
- any notice given by the employer 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 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 (see below for more details on this), and
- any other relevant matter.
It’s important that employers take into consideration ALL of the above matters before requesting an employee work additional hours. What is “reasonable” will need to be assessed on a case-by-case basis.
It’s worth noting that applicable Awards, Enterprise Agreements and/or employment contracts may allow an employer to average an employee’s weekly hours of work over a period of time, usually 2 or 4 weeks. By way of example, if the Award, Agreement or contract provides for it, an employer can have an employee work, say, 46 hours in week 1, and 30 hours in week 2 of a roster. If as an employer you are looking to utilise these averaging provisions, be sure to also review the overtime provisions of any applicable Award/Agreement/contract.
If you need further information or assistance, feel free to give us a call.
This article provides general information only and is not legal advice. If you need assistance in understanding requirements for your business, let us know.