When do hours over 38 hours become reasonable?

38 hours a week – with the overwhelming tide of flexibility, wage rises and work from home permeating in the workplace national employment standards make it clear that ordinary hours of work consist of only 38 hours per week.

However, in many industries, salaried positions and for non-award covered employees the requirement to work “reasonable additional hours” to complete the duties or work they are employed for is quite common.  This is usually coupled with a higher than standard pay rate or salary, greater flexibility and greater responsibility.

What are “reasonable additional hours”?

In the Federal Court decision of Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512 the Court was asked to answer this question.

A migrant worker from Ghana started work with Dick Stone a long established NSW butcher and meat processor. At the commencement of employment he was provided with documents entitled:

  • Employee commencement pack
  • Employment form

These documents specifically outlined that he would work ordinary hours of 50 hours per week – however, importantly it failed to outline the:

  • hourly rate
  • overtime rate

Oddly, the employee did not actually know how much they would be paid until the first pay slip.

The employee worked from 2am to 11.30am on Monday to Friday and then a further 2am to 7am on Saturdays. The employee felt that these hours were tiring, draining and if given the choice would not have worked those hours.

A dispute was raised by the union on behalf of the employee on the basis that Dick Stone failed to:

  • pay overtime rates in excess of 38 hours per week
  • pay overtime rates in excess of the span of hours
  • failing to comply with the award by requiring or requesting him to work more than 38 hours per week

Findings by the Court

The Federal Court found that the hours were unreasonable. Whether hours in excess of 38 hours is reasonable falls to the employer asserting it and based on a number of factors:

  • risk to health and safety
  • personal circumstances
  • needs of the workplace
  • entitlements to overtime, penalty rates, compensation or remuneration
  • notice provided that the employee would work additional hours
  • notice provided by the employee that they had an intention to refuse to work the additional hours
  • Usual patterns of work in the industry
  • Nature of employee’s role and level of responsibility
  • Other factors such as the average of hours, unsocial hours of work, effect on weekends and personal/family time

The Court in taking into account all these factors had a particular focus on the health and safety aspect.  Accepting that it was common knowledge that physical and mental exhaustion from working such hours would lead to higher risks of accidents in the workplace especially as the employee would be utilising knives and lifting heavy objects. 

The long hours could arguably have been split among a number of employees and there were arguments that the shifts were unnecessarily long.

Apart from the physical hazard there were also arguments that such hours worked would contribute to a variety of diseases.

From a personal perspective knowing that the employee was an immigrant with little knowledge of Australian labour law as well as not being issued with Fair Work Information Statement made it clear that the employee had very little understanding of his working rights.

Justice Katzmann also underlined there were several flaws in the employment contract especially given none of the documents mentioned what the employee would be paid.

Ultimately, although a 50-hour week “aligned with Dick Stone’s business needs”, the Court found that the additional hours were not reasonable based on the factors above but in particular the workplace health and safety risks associated with long shifts in a role with knives and heavy lifting and on the basis the employee was not given a choice to work such hours.

Key Considerations

This case demonstrates that regardless of whether an employee freely agrees to an employment contract which requires reasonable additional hours they will not be deemed reasonable in every case. Employers and Human resources need to consider the following:

  • The criteria of factors considered:
    • risk to health and safety
    • personal circumstances
    • needs of the workplace
    • entitlements to overtime, penalty rates, compensation or remuneration
    • notice provided that the employee would work additional hours
    • notice provided by the employee that they had an intention to refuse to work the additional hours
    • Usual patterns of work in the industry
    • Nature of employee’s role and level of responsibility
    • Other factors such as the average of hours, unsocial hours of work, effect on weekends and personal/family time
  • Balancing the business needs and the need for reasonable additional hours
  • Undertake risk assessments of the hours worked by the employees
  • Basic processes are maintained namely:
    • An employment contract is in place
    • The Fair Work Information Statement is issued at commencement of employment

Give NB Lawyers – Lawyers for Employers a call and we can offer an obligation free consultation to work through some of these steps worth taking.  Reach out via service@nb-lawyers.com.au or +61 (07) 3876 5111 to book an appointment.

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Written By 

Jonathan Mamaril 

Director

NB Lawyers – Lawyers for Employers 

jonathanm@nb-lawyers.com.au 

+61 (07) 3876 5111 

Jonathan Mamaril leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.

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