Salary employees, typically professionals working in skill, knowledge and process intensive industries can be compelled to work ‘extra reasonable hours’ where necessary if they:
- Are retained under a valid employment contract;
- Are paid on a salary basis; and
- Have an absorption or ‘over-award-payment’ clause included in their contract of employment.
This concept taken at face value may seem to be a straightforward legal principle, easy to wrap one’s head around. Unfortunately employment law issues are rarely so black and white; often containing minefields of hidden considerations which even the most prudent of Employers can easily fail to take into account without the aid of professional legal expertise.
One such example of employers falling prey to these types of legal snares is the Fair Work Commission decision of Bradley Sheldrick v Hazeldene Chicken Farm Pty Ltd in which it was held that an employee could not be compelled to accept amended terms to his contract of employment which effectively forced a significant increase of additional hours worked by way of a compulsory on call-roster.
The Commission has held that a salary employee may be compelled to work any additional hours as is reasonably necessary to deliver performance as per the terms of their employment contract so it would be easy to assume that such amendments would not pose a problem.
However there exists a fine distinction between genuine requirements for additional work hours and attempts by employers to compel or otherwise strongarm employees into accepting variations in their contracts which substantially increase the amount of hours required to be worked. Non-compliance with an attempt to compel any employee in this manner is not a valid reason for dismissal and applications to the Fair Work Commission on this basis may result in an employer being liable for damages for any loss of income experienced by employee as a consequence.
There is no definitive answer to what constitutes ‘reasonable additional working hours’ with this question often being decided on a case by case basis taking into account the relevant, unique circumstances of each matter. Consultation with a specialist in the area of employment law is strongly advised when dealing with these types of issues.
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