Maximum Weekly Hours of Work

In Australia, the National Employment Standards (NES) mandate the maximum weekly work hours for employees. However, the NES also acknowledges that workers may be required to perform “reasonable additional hours”. This article looks at a recent decision of the Federal Court of Australia that expands on the meaning of reasonable additional hours for Australian workers.

Maximum weekly hours of work and the law

The Fair Work Act 2009sets out the NES as part of a safety net for employees in the national workplace relations system. Based on the NES, an employer should not ordinarily expect a full-time employee under an employment agreement to work more than 38 hours a week. This maximum hours of work must account for employee leave and (paid and unpaid) absences during the week (as long as the leave is authorised by the employer, or permitted under law or the worker’s employment terms). A worker asked to undertake unreasonable additional hours has a protected right to refuse without incurring adverse action by their employer.

It is important to remember that an employee under an award or enterprise agreement may have ordinary weekly hours in excess of 38. The maximum hours for these workers will be specified in their award or agreement.

Penalty rates

A penalty rate is a higher rate of pay received by an employee when working overtime. Under the Fair Work Act, an employee is not automatically entitled to receive penalty rates. However, many industrial awards, enterprise agreements, and employment contracts will include provision for penalty rates.

Averaging hours

The NES allows for weekly hours of work to be “averaged” over 26 weeks. As long as the average number of hours is not more than 38 per week, the employee can work more hours in some weeks and fewer hours in others. When there is an averaging arrangement in place, this will be relevant in determining whether additional hours are considered “reasonable”. 

An agreement or award will often specify how averaging will apply to a given role, but employees not covered by an agreement or award can agree with their employer in writing to use an averaging arrangement. However, there is no requirement for the worker to enter into such an agreement. In fact, it is unlawful for an employer to require an employee to agree to an averaging arrangement.

Reasonable extra hours

The following factors are taken into account when assessing whether additional hours are reasonable:

• The risk to the employee’s health and safety because of the additional hours;
• The employee’s personal situation, such as family responsibilities;
• The workplace’s operational needs;
• The employee’s entitlement to overtime payments, penalty rates, and other compensation for working additional hours;
• The notice that the employer gives to the employee;
• The notice that the employee gives of their intention to refuse the additional hours;
• The typical patterns of work in the industry;
• The employee’s level of responsibility and nature of their role;
• Whether the extra hours accord with contractual or agreed averaging provisions; and
• Any other relevant considerations.

Case study

The Federal Court’s decision in Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] is relevant to the definition of “reasonable additional hours”. The applicant in this case was a Ghanaian immigrant who was employed soon after arriving in the country as a knife hand with Dick Stone Pty Ltd, Sydney’s largest meat wholesaler. He was provided with a written employment contract requiring him to work 50 “ordinary work hours” per week, from 2 am to 11:30 am on weekdays and from 2 am to 7 am on Saturdays, plus reasonable extra hours upon request. The employee was covered by the Meat Industry Award 2010, but the contract did not reference the Award.  During his time at the meat wholesaler, the employee routinely worked 50-hour weeks and occasionally worked additional hours.

The employee claimed he was given no choice over his ordinary hours of work and would not have agreed if he did have a choice. He said that he found his working hours and early start times draining. The company submitted that the employee entered into the employment agreement voluntarily. However, the Court determined that the parties cannot contract out of this entitlement under the NES. Therefore, the pertinent question was whether the arrangement of working 50-hours per week (with occasional paid overtime) was reasonable.

Risk to the employee’s health and safety

As the employee worked with sharp knives and heavy lifting, fatigue increased the risk of accidents and adverse health issues. Dick Stone submitted that the employee had suffered few injuries, but the Court found that this does not mean there was no risk, just that the risk had not yet been realised.

The employee’s personal situation, such as family responsibilities

The court noted that the employee’s personal circumstances meant that he was unaware of his employment rights.

The company’s operational needs

The court accepted the premise that a 50-hour week aligned with the company’s operational needs but noted that this alone did not mean the additional hours were objectively reasonable.

The employee’s entitlements

The employee was not paid the correct amount for his hours of work based on the relevant Award.

The notice that the employer gives to the Employee

The employee was aware from the outset of the additional hours because they were specified in his letter of employment.

The notice that the employee gives of their intention to refuse the additional hours

The employee never notified his employer or union of a refusal to work the additional hours. The court acknowledged that this was unsurprising as the employee was not given an FWIS and was unaware of his Award entitlements before contacting his union.

The typical patterns of work in the industry

Under the Award, the ordinary span of hours was from 4 am, not 2 am, so the employee’s start time was unusual.

The employee’s level of responsibility and nature of their role

The employee did not have supervisory or managerial duties, so the nature of his role did not require him to work more than 38 hours per week.

The extra hours accord with contractual or agreed averaging provisions

The employee’s hours were not in line with Award averaging terms.

Additional relevant matters

The hours were “unsociable” and deprived the employee of a weekend. The additional hours represented an additional 31.5% on top of a normal working week.

The Federal Court determined that the hours that the employee was required to work exceeded 38 hours and that in all the circumstances the additional hours were not reasonable. The Court fined the company $93,000 for contraventions of the Fair Work Act and the Award, payable to the employee.

As this case demonstrates, employers have a legal responsibility to follow the NES, and not ask employees to work more than the maximum working hours. Go To Court can provide advice on maximum weekly hours of work, and all other employee entitlements. Please contact the employment law team on 1300 636 846.