No more 9 to 5? Working “reasonable additional hours”

Yesterday The Sydney Morning Herald reported that 5 million of Australia’s 7.7 million full-time workers work more than 40 hours a week, including 1.4 million who work more than 50 hours a week.[1] The article notes that “officially, Australians in full-time jobs put in 38 hours per week” – so how might these statistics be explained?

While the National Employment Standards (“ NES”) in the Fair Work Act 2009 (Cth) set the maximum ordinary hours of work at 38 per week, an employer may request that an employee work “reasonable additional hours”.

Determining how many additional hours are “reasonable” is not always an easy task. Here are our top tips.

1.  It’s all about balance

The needs of the workplace will be taken into account, as will the personal circumstances of an employee. For example, it may not be reasonable to ask an employee with responsibility for a young family to stay back at night.

2.  Safety first

An employee should not be requested to work additional hours if doing so is likely to put their health and safety at risk. An overworked worker can be a clumsy worker who may put an employer at risk of breaching its obligations under work health and safety legislation.

3.  Be mindful of award obligations

Certain modern awards limit the hours an employee may be requested to work, as well as the period of time over which weekly hours may be averaged. Modern awards may also require that overtime is paid for additional hours worked in excess of ordinary hours.

4.  Have regard to your industry

It is understood that certain employees may be required to work more than 38 hours in certain weeks due to the nature of work in their industry. Fly-in fly-out miners and professional services employees working to client demand might fall into this category.

5.  Every case is different

Whether a request is reasonable will depend on all the circumstances; a request that is reasonable on one occasion might be unreasonable on another. If you are unsure of whether a request is reasonable, don’t hesitate to contact one of the PCS team for guidance.


Top five lessons for employers from the Rugby World Cup

The final of the Rugby World Cup is set and it could not be a more perfect matchup. While businesses in either Australia or New Zealand may have an influx of disappointed employees on Monday, organisations can use the opportunity to take a step back and learn a few things from the match.

1.  Stay out of the sin bin

Even the most minor infraction, if intentional, can put you a player down for ten minutes. Recently, the Fair Work Commission penalised an HR Manager for doing just that. Although the infraction only caused the aggrieved ex-employee about $180 in economic damage, the deliberate breach of the Fair Work Act ended up costing the individual HR Manager (player) $1,020 and the company (team) about $20,400. Just like in rugby, individual decisions can impact everyone on the team. Keep your head in the game and focus on the win.

2.  Strong leaders come in many different forms

Looking at the final of the World Cup, we have two distinct players leading their team into battle. Stephen Moore and Richie McCaw both do an excellent job getting the most out of their teammates but do so in their own unique style. There is not one trait or set of traits that makes a good leader. Knowing yourself and being the best you can be is the only way to be confident enough to inspire others to get the same out of themselves.

3.  Culture creates cohesion. Cohesion is hard to beat.

Look no further than the last minutes before kickoff in any All Blacks game. The Haka brings the team together in a way that is nearly impossible for others to rival. It amps up the players; it focuses their minds on the upcoming test; and finally, it sends a ripple through the opponents’ bodies (whether they are willing to acknowledge it or not) that shouldn’t be underestimated. Find your Haka at work to bring your workplace together and stand out from the competition.

4.  There’s no getting around the blood bin

Just like work, heath and safety obligations, you can’t get around the referee sending you off for an open wound. It’s not safe for the injured player and it’s not safe for the rest of the players on the field. Know your WHS obligations back to front and hold your employees accountable (while also reminding them of their personal obligations under the legislation) for any missteps. When people do need to be sent off, just like a world class medical trainer, fix the problem and do your best to put them in a position where they can safely get back in the action as soon as possible.

5.  Get your signals straight

During the Bledisloe Cup this year the All Blacks exposed some serious issues in the Wallabies’ lineouts, something that can’t happen this weekend if Australia hopes to beat their arch rivals. The need for clear signals and execution is the same in the workplace. Employees need to know the direction of the company if you want them to engage in the play. Having everyone on the same page is best practice and the key to a high performance culture.

At PCS we don’t like to pick favourites, but… Go Wallabies!!!

​Follow up: HR Managers beware

In June 2015, we reported on the potential for HR Managers to have personal penalties imposed on them for their involvement in breaches of the Fair Work Act 2009 (Cth) (the “FW Act”).

In a decision on the penalties[1], the Federal Circuit Court imposed a penalty of $1,020 on the HR manager for her involvement in the dismissal of an employee who was incorrectly given four weeks’ notice of termination rather than the five weeks’ he was entitled to under the National Employment Standards (the “NES”).

This decision sends a warning to all HR Managers, no matter their seniority, because it suggests that the Court is willing to impose a penalty on a HR manager, where:

  • there is involvement (no matter the impact) in the contravention;
  • there is an admission that the HR Manager is aware that the FW Act provides for minimum employment standards;
  • it is within the HR Manager’s authority to decide on how the minimum employment standards are administered; and
  • there is no satisfactory explanation of why, if a HR Manager is aware of these obligations, there has still been breach of the NES

Further, where the above knowledge is within a HR manager’s skill set, it will not be acceptable to assert that the error was “procedural and not a deliberate failure”. In addition, HR Managers cannot escape liability simply by arguing they were subject to the direction of the employer.

Importantly, Judge Simpson commented that “the penalty that I propose to make will be a warning to employers of the need to comply with the legislation to the letter” and imposed a penalty of $20,400 on the company. In relation to the HR Manager, the Court imposed a minimal penalty (which was 10% of the maximum penalty available) with Judge Simpson commenting that this was because the HR Manager’s conduct was significantly less serious than the conduct of the company itself and that she was not “heavily involved in the contravention”.

Tips for HR Managers

HR Managers must be aware of obligations under the FW Act and where an employer’s direction is inconsistent with these obligations, they should not turn a blind eye to the legal implications of the breach. Being aware that a contravention of the FW Act is happening or going to happen, in the absence of a satisfactory explanation as to why a breach still occurred, will likely be sufficient for a penalty to be imposed on the HR Manager despite not being actively involved in the decision making process.[2]

To reduce the risk of a penalty being imposed personally, HR Managers should ensure that they have a sound understanding of the FW Act and the obligations arising under it. If a HR manager is subject to a direction by the employer that they feel is inconsistent with the FW Act, they should work together with their employer to ensure compliance and appropriately documented any reasons for decisions. Not only will HR managers be personally avoiding a penalty being imposed, they’ll be protecting the company.

[1] Cerin v ACI Operations Pty Ltd & Ors [2015] FCCA 2762.

[2] Fair Work Ombudsman v Centennial Financial Services Pty Ltd(2010) 245 FLR 242.

What’s the difference? Defending a General Protections Claim vs a Discrimination Claim

When an employee alleges experiencing discrimination at work and wishes to pursue a legal remedy, the employee has a variety of options available to them. Two of those options are a discrimination claim under Federal or State anti-discrimination law or recourse under the general protections provisions of the Fair Work Act 2009 (Cth) (the “FW Act”).

It is beneficial for an employer to be aware of the differences between a general protections claim and a discrimination claim to understand why an employee may have chosen a certain legal path and to defend a claim in the event that it arises in their organisation.

1.   Not Just Confined to Discrimination

Under the FW Act, an employer is prohibited from taking “adverse action” against an employee or prospective employee “because of” various prescribed grounds which can be grouped into three main categories:

  • industrial activities;
  • workplace rights; and
  • discrimination.

This means that an employee or prospective employee could bring a general protections claim on the basis of discrimination as well as, for example, making a complaint in relation to their employment.

Anti-discrimination legislation, on the other hand, is confined to direct or indirect discrimination based on a prohibited ground under the legislation.

2.  Burden of Proof: the Reverse Onus

Importantly for employers, if an employee brings a general protections claim under the FW Act and can establish that they possess a particular attribute and allege they have suffered adverse action for that particular reason, the onus of proof falls on the employer to prove that the reason for the adverse action was not because the employee possessed a particular attribute. In other words, it is presumed that the employer’s action was taken for that discriminatory reason unless the employer can prove otherwise.

3.  Compensation Caps

Under Federal anti-discrimination law and State anti-discrimination legislation in Victoria, Queensland, Northern Territory, Tasmania and South Australia, there is no cap to the amount of compensation that an employee can be awarded if their discrimination claim is successful. The general protections provisions also do not provide for a cap on compensation.

However, a compensation cap of $100,000 is prescribed under the Anti-Discrimination Act 1977 (NSW) and $40,000 under the Equal Opportunity Act 1984 (WA).

This is important as some employees may tactically choose which jurisdiction they wish to bring their claim under based on whether there is a compensation cap.

4.  Costs

One of the purported benefits of bringing a general protections claim as opposed to a discrimination claim is the “no cost” jurisdiction under the FW Act. Costs will only be awarded in limited circumstances where the Fair Work Commission (“FWC”) is satisfied that the proceedings were vexatious or without reasonable cause. If a general protections claim proceeds to the Federal or Federal Circuit Court, costs may be awarded, but only in limited circumstances.

In relation to Federal anti-discrimination claims, the Federal Circuit Court and the Federal Court have a general discretion to order costs in these matters. Regulation of costs under State anti-discrimination varies, with claims beginning in a regulatory body, where parties try to conciliate the matter and bear their own costs. For example, in NSW a claim is commenced in the NSW Anti-Discrimination Board. If the matter is then referred the the NSW Civil and Administrative Tribunal, the parties will continue to bear their own costs except in special circumstances.

This is important as employers need to remain conscious of the commercial impact that defending a general protections application may have on its bottom line, (noting that it is unlikely that costs will be awarded against the employee if an employer successfully defends a general protections application).

5.  Time Limits

Under Federal and State anti-discrimination law, there is no time limit as to when a complaint can be made however, in general, a complaint may terminated if it is lodged more than 12 months after the alleged unlawful discrimination took place.

However, an employee who is terminated from their employment and wishes to bring a general protections application must apply to the FWC within 21 days of the termination (it is possible for the FWC to grant an extension). In other circumstances, (for example, where there has been no termination of employment) there is a six year time limit for an employee to make a general protections claim to the FWC.

If you have any questions or require any assistance with defending a discrimination or general protections claim, please call PCS on 8094 3100.

Federal government cracks down on drugs and alcohol on worksites

As of Friday last week, changes to the Building Code 2013 (the “Building Code”) by the Minister for Employment now require building contractor’s or building industry participant’s work health safety and rehabilitation (WHS&R) management system to demonstrate how drug and alcohol issues in the workplace will be managed in order to ensure that no person performing building work on site does so under the influence of alcohol or other drugs.

So what does this mean for certain contractors and subcontractors required to comply with the Building Code? 

In addition to the drug and alcohol issues being addressed by WHS&R management systems, certain building industry participants will also be required to implement a fitness for work policy to manage drugs and alcohol in the workplace. Contractors affected by these changes are those engaged in building work where the Commonwealth’s contribution to the project is at least $5 million (where the total project is worth less than $10 million) or any project where the Commonwealth’s contribution is at least $10 million regardless of the size of the project.

It is the responsibility of the principal contractor to demonstrate a management plan that addresses how those on site (including employees of the principal contractor, subcontractors and their employees and others) will be required to comply with a fitness for work policy with respect of drugs and alcohol.

The amendment to the Building Code requires regular and periodic testing for alcohol and drugs to be conducted at least once a month per site and must capture:

  • 10% of the workers per month for sites with less than 30 workers;
  • a minimum of 5 workers per month for sites with between 30 and 100 workers; and
  • a minimum of 10 workers per month for sites with over 100 workers.

Interestingly, the management plan must address how workers who attend for work affected by drugs and alcohol will be counselled and assisted, apart from any disciplinary action that might be applied.

What does this mean for your business?

While all building industry participants must review their existing WHS&R management systems and some must also develop a fitness for work drug and alcohol policy to ensure continual compliance with the Building Code, all employers should consider reviewing their WHS management system and drug and alcohol policy as part of providing a safe workplace and managing risk in the business.

5 tips on managing restructures

A business restructures a strategy for achieving efficiencies, increasing profitability or to adapt to a changing market. Here are 5 tips for achieving a smooth restructure as far as employees are concerned.

1.  Have a plan

Ask yourself:

  • What are the main objectives of the restructure?
  • Do any positions need to be made redundant to achieve this? 
  • How long will the process take? 
  • How will you communicate this to staff?
  • What risks are associated with the process?

A clear strategy will help the restructure proceed smoothly

2.  Know your industrial agreement

Make sure you are aware of the National Employment Standards as well as any modern awards, enterprise agreements or contracts that apply to your employees. These will detail any redeployment, consultation, notice and/or severance pay obligations. 

3.  Last employee hired is not necessarily the first to be fired

Selecting employees for redundancy must be based on fair and unbiased selection criteria that is clearly communicated and transparent to staff. You should consider the skills, knowledge and experience necessary to meet the operational requirements of the business in detailing such criteria.

4.  The position is redundant not the person

A redundancy is only genuine when an employer no longer requires a person’s job to be performed by anyone because of the operational requirements of the business. If you terminate an employee’s employment for redundancy and then employ another person in the same role, the redundancy can be challenged.

5.  Communication is key

Communicating effectively with your employees and other stakeholders is essential in protecting against claims and important in keeping the business productive and viable during what is often a time of uncertainty and change.

Employees should be made aware of the plan and timing of the restructure; this will dispel rumours and assist them to remain positive and productive.

​Wealth for TOIL? Time off in lieu of payment for overtime

Last week, the Fair Work Commission (the “FWC”) handed down a model term proposed to be inserted into modern awards to allow for employees to take time off in lieu of payment for overtime (“TOIL”). This interesting development coincides with the current debate about flexibility in the workplace, particularly in relation to the payment of penalty rates for weekend work.

The model term provides that each hour of overtime worked by an employee may be taken as one hour of time off during ordinary time hours in the event of agreement between the employee and his or her employer. Various safeguards have been devised, including:

  • an employer must not exercise undue influence over an employee’s decision in relation to TOIL; and
  • an employee may request at any time to be paid at the overtime rate for any time in lieu not yet used.

The concept of TOIL is astute and has the potential to benefit both employers and employees. For example:

  • employers may be able to increase operating hours without incurring the increased costs associated with overtime; and
  • employees for whom time (more so than money) is at a premium may be able to structure their working hours in a way that suits their responsibilities outside of work.

As was acknowledged by the FWC in its decision, TOIL has the potential to “encourage greater workforce participation, particularly by workers with caring responsibilities”.

Further, a recent survey of the FWC revealed that 32 per cent of employees ranked flexibility to balance work and non-work commitments as the biggest driver of their overall job satisfaction. This outweighed all other drivers, including the work itself, hours and pay.[1]

In a political context in which debate over the fundamentals of Australia’s workplace relations system appears to be intensifying, any measure that has the potential to align the interests of employers and employees is welcomed.

TOIL is just one mechanism by which employers can increase flexibility in their workplace and organisations should be proactive in determining others that may help them achieve the same. More flexible workplaces are likely to attract the best talent, have higher workplace morale and, consequently, experience increases in productivity.

If your organisation needs assistance in this area, contact one of the PCS legal team today.

[1] Fair Work Commission, Australian Workplace Relations Study, available at <>,47.

​The Impact of Bullying on Mental Health

Each year, mental health conditions of workers cost Australian employers over $10 billion. Bullying has been identified as one of the key causes of such mental health issues. The legal framework, the Fair Work Commission’s expanded jurisdiction to make stop bullying orders and increased regulatory scrutiny mean that employers must understand, manage and minimise bullying in the workplace.

What are the legal risks of bullying in the workplace?

Employers should not only be aware of the injuries, decreased productivity and absenteeism associated with bullying in the workplace, but also possible exposure to legal claims including:

  • an application by an employee who alleges they are being bullied to the Fair Work Commission (“FWC”) for a stop bullying order. It is important to note that orders made by the FWC may affect the employer even if the employer is not a party to the proceedings;
  • breach of the employer’s work health and safety obligations , including the obligation to ensure, so far as reasonably practicable, the health and safety of workers at work. This includes mental health conditions and anything that may trigger or exacerbate mental health conditions; and
  • claims for common law damages for negligence as seen in the case of Swan v Monash Law Book Co-operative [2013] VSC 326. In that case, the employer failed to act on complaints and the employee was awarded almost $600,000 for psychological injuries as a result of “sustained workplace bullying”.

Congratulations to PCS team member, David Weiler

Congratulations to PCS team member, David Weiler who has today been admitted as a Lawyer of the Supreme Court of New South Wales.

David has been with PCS since February and is participating in our 2015 Graduate Program, a two year development program which sees participants mentored by the PCS Senior Legal Team.

On behalf of the team at PCS, we congratulate David on this milestone in his career.