With our low unemployment rate and a skills shortage, many businesses across the board are relying heavily on their existing employees to pick up the slack and work additional hours to meet their business needs.

When requesting your employees to work additional hours (more than a 38-hour week), what is deemed reasonable?

The Fair Work Act, section 62(3) provides a list of factors that should be taken into account to determine if the request to work additional hours is reasonable. Employers need to consider the employee’s:

  • health and safety

  • personal circumstances

  • role and responsibilities

  • entitlement to paid overtime

  • span of hours under the relevant modern award.

In the Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512, the Federal Court of Australia recently held that an employee required to work 50-hours per week, was considered unreasonable.

On what grounds did the Court consider 50-hours per week was unreasonable?

In this case, the Court before making its decision, considered the factors set out in section 62(3) of the Fair Work Act:

  • Health and safety – there was an obvious risk due to the hours the employee worked that would cause fatigue. The use of knives and heavy weights could increase the risk of accidents occurring in the workplace
  • Personal circumstances
    - the employee was a recent immigrant. He had a wife and young child.
    - the employee did not attempt to negotiate the additional hours was unsurprising as he had only recently arrived in Australia from a third-world country and was unlikely to be familiar with Australian law
  • Span of hours – although a 50-hour week aligned with the needs of the business, a structure preferred by the majority of employees, it didn’t mean the hours were reasonable in the case of this employee
  • Overtime – the employee was entitled to be paid overtime as he worked outside of the ordinary span of hours provided for under the Award
  • Role and responsibilities – the employee was not a manager or a supervisor. His role did not include responsibilities that may justify his requirement to work additional hours
  • Hours of work – the employee was required to regularly and frequently work ‘unsociable hours’ that were over an ordinary 5-day working week. This deprived the employee of his weekends
  • Employee entitlements - the employee was not provided with a copy of the Fair Work Information Statement before he started work or shortly thereafter. Failure to do this deprived the employee of learning about his employment entitlements.

What the Court said

The Court found that it was unreasonable for the employer to require the employee to work an additional 12 hours per week above a 38-hour week, after taking into consideration the employee’s circumstance. As such, the employer had contravened section 62 of the Fair Work Act.

A further hearing on compensation and penalties has been set down for this matter.

What we learned

Employers (managers and supervisors) need to be aware of each individual employee’s circumstances to determine whether it is reasonable to request one of their employees to work additional hours.

Ulton’s HR Consulting Services can provide you with:

  • written employment contracts that clearly set out terms and conditions of employment to mitigate your business risk.
  • provide advice and support on your employer obligations under the Fair Work Act 2009 (Cth), the National Employment Standards, Modern Awards and Work, Health and Safety
  • provide advice that assists you with resolving any HR issues.
Reach out to our HR Consulting Team by calling (07) 4154 0413 or via our contact form.

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