Maximum Weekly Hours v Employer Expectations: What Does the Law Say?

With the increasing trend for home offices, part-time work and our ever-growing access to technology (lap tops, mobile phones, tablets, internet storage and so forth), the demands on employees to be available at all times is increasing exponentially. Employers, and particularly small to medium business owners, often have an expectation that their employees invest their time and energy into a company that may not adequately reward them for their efforts. Indeed such expectations may be unlawful.

Maximum weekly hours of work are provided for in the NES, pursuant to sections 62–64 of the Fair Work Act 2009. Specifically, they provide that an employer must not request or require a full-time employee to work more than 38 hours a week, unless the additional hours are ‘reasonable’.  For an employee other than a full-time employee, this equates to (the lesser of) 38 hours, or the employee’s ordinary hours of work in a week. An employee may refuse to work additional hours if they are ‘unreasonable’.

In determining whether additional hours are reasonable or unreasonable, the following must be taken into account:

• any risk to employee health and safety;
• the employee’s personal circumstances, including family responsibilities;
• the needs of the workplace or enterprise;
• whether the employee is entitled to receive overtime payments, penalty rates or other compensation for (or a level of remuneration that reflects an expectation of ) working additional hours;
• any notice given by the employer to work the additional hours;
• any notice given by the employee of his or her intention to refuse to work the additional hours;
• the usual patterns of work in the industry;
• the nature of the employee’s role and the employee’s level of responsibility;
• whether the additional hours are in accordance with averaging provisions included in an award or agreement that is applicable to the employee, or an averaging arrangement agreed to by an employer and an award/agreement-free employee; and
• any other relevant matter

Terms in awards, agreements and employment contracts cannot exclude or provide for an entitlement less than the NES and those that do, have no effect. An employer that contravenes a provision of the NES may be exposed to penalties of up to $10,200.00 for an individual and $51,000.00 for a corporation.

To ensure your company is complying, or to discuss any aspect of business or personal law, contact Julia Adlem or Alisha Thompson at Pace Lawyers on (08) 8410 9494.