29 October 2015

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.

[1] http://www.smh.com.au/business/workplace-relations/the-38hour-week-a-rarity-among-fulltime-workers-new-data-shows-20151027-gkk1r6.html

Posted in Legal Advice & Consulting.
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