The National Employment Standard regarding the maximum weekly hours of work per week is often understood as something like ‘a maximum of 38 hours per week for a full-time employee plus reasonable additional hours’ (our emphasis).

The Fair Work Act actually says that employers must not request or require full-time employees to work more than 38 hours (for a full-time employee) unless the additional hours are reasonable (my emphasis). Employees may refuse to work additional hours if they are unreasonable.

On its face it seems like semantics, but a recent case examined how this provision operates and what it means to ‘require’ an employee to work additional hours.

The Background

The Applicant was employed as a director “essentially in charge of the Australian operations”. He claimed that for the final few years of his employment he regularly worked around 70 or 80 hours per week because he needed to undertake extensive travel, attend international meetings and calls at times as late as 4:00 am and otherwise would often work more than 12 hours a day.

The Applicant’s employment contract specified that his “[h]ours of work were 8:30am to 4:30pm Monday to Friday with an hour lunch break” and that the nature of the employer’s business “may on occasion require [the employee] to work reasonable additional hours in excess of [those hours]” but to the extent he was approved to work any “unreasonable additional hours” he would be entitled to payment for working overtime.

The Applicant claimed the time he worked beyond 38 hours per week and up to 70 to 80 hours per week constituted unreasonable additional hours that the employer required him to work breaching the Fair Work Act.

What did the Federal Court find?

The Applicant’s claim was unsuccessful because in particular:

• it was necessary for the Applicant to provide evidence and prove that he was actually required to work additional hours – that is, someone gave him that instruction or direction, and/or the volume or nature of the work meant that the only way he could complete it was to work those hours he claimed to have worked on an ongoing basis; and
• the Applicant needed to prove and specify, with a degree of precision, the hours of work he claimed he worked, not just provide a general guesstimate.

This Federal Court decision provides a useful discussion of how these provisions operate when the reasonableness of additional hours is disputed.

Employers ‘requiring’ or ‘requesting’ additional hours

The Court noted that to enliven the provision, there needs to be a requirement or request by the employer to the employee to work additional hours.

It may be an employee’s responsibility “to complete a task [which had] the impossibility of completing it other than beyond ordinary working hours” and so it would be possible to establish that there was a ‘requirement’ for additional hours to be worked due to the nature of the work itself.

However, this is contrasted with a situation where an employee chooses to work additional hours without the knowledge or approval of the employer. In this case, there cannot be a complaint of an alleged requirement to work unreasonable additional hours.

A totality of factors such as the employee’s seniority, their level of autonomy to set their own working hours, relevant industrial instruments and workplace guidelines are therefore considered when looking at whether there is a requirement or request by the employer.

Determining the reasonableness of additional hours

Assuming there is a requirement or request made, these hours still must also be reasonable. To determine the reasonableness of additional hours, several factors set out in the Fair Work Act must be taken into consideration including, for example: risks to health and safety, personal circumstances (e.g. family responsibilities), whether the employee has expressed intention to refuse to work and whether the employee is compensated for the additional time worked. Ultimately the Court noted that, “[r]easonableness is to be ascertained in context, on a case-by-case basis.”

How PCS can help

This decision provides some comfort that employees who choose their own hours of work or pace will not later be able to complain about their choices.

However, PCS appreciates that from time to time there is the legitimate business need to require an employee to work a little longer than usual to get the job done and there is no single magic number that will guarantee passing the ‘reasonable additional hours’ test. The question for the employer then becomes how do I assess ‘reasonableness’ here?  As each situation is different, the PCS team are happy to help guide you through that assessment and decision-making process.

Veronica Lee, Senior Associate and Daniel Prodigalidad, Paralegal