Do additional hours pose a WHS risk?

Do additional hours pose a WHS risk?
By Paul Munro on 6 December 2017 Does it pose a WHS risk if we ask managers to work 45-50 hours a week? At what point do additional hours become unreasonable?

This question was recently sent to our Ask an Expert service.

Q Our standard contract of employment which covers management and professional positions stipulates a 38-hour week, however these employees usually work about 45 to 50 hours per week. They were advised of the amount of weekly hours expected to be worked during the interview process. Our company is in the process of reviewing  our policies and procedures, and our standard contract of employment.

It would appear the Fair Work Act refers to a maximum of 38 hours per week, with reasonable additional hours.

As their contract refers to a 38-hour week, would any of our management have the right to refuse to work (say) 45 hours each week because the Fair Work Act regards this amount of hours as unreasonable?

At what point do additional hours become unreasonable? And can employee can refuse to work?

A The maximum of 38 hours in a week under the Fair Work Act is also subject to the rule that an employer may require an employee to work reasonable additional hours in the week. What this means is there is no prohibition under the Fair Work Act from working additional hours, just an opportunity for employees to refuse in certain circumstances.

A contract of employment may refer to nominal weekly (or monthly) hours of work with the proviso that additional hours may be required to be worked to meet the needs of the business. An employer should indicate to a prospective employee the expected number of hours required to be worked each week (as opposed to the nominal hours of work).

The additional hours provisions under the Fair Work Act contemplate the situation of hours worked in addition to what are the agreed or contracted weekly hours.

Reasonableness of additional hours

When determining whether additional hours are reasonable, the following factors are to be considered:
  • any risk to employee health and safety from working the additional hours
  • the employee’s personal circumstances, including family responsibilities
  • the needs of the workplace or enterprise in which the employee is employed
  • whether the employee is entitled to receive overtime payments, penalty rates or other compensation for working additional hours
  • notice (if any) given by the employer of any request or requirement to work the additional hours
  • the notice (if any) given by the employee of their intention to refuse to work the additional hours, and
  • any other relevant matter.

Case law

There is little case law relating to the question of reasonable additional hours and it appears nothing relates to professional employees. The reasonableness or otherwise of additional hours was considered by the (then) Federal Magistrates Court and, on appeal, the Federal Court. The matter related to a worker employed as a fish keeper who was dismissed after four months when he refused to work additional hours performing maintenance, including working weekends and public holidays.

The worker tried to negotiate time off in lieu rather than overtime payments because he had an outside business interest, but the employer refused and dismissed him. The magistrate’s decision demonstrated that an employee’s ‘personal circumstances’ (which are relevant to determining whether overtime is ‘unreasonable’) are to be understood in the broad sense and are not limited to family commitments or caring responsibilities. It was determined that the request to work additional hours was unreasonable in the circumstances.

However, the primary reason why the court considered that the employer had failed to establish that the imposition of further overtime on an involuntary basis was not unreasonable was because it failed to provide evidence about how much overtime the employee worked from time to time, either specifically or on an average.

The employer needed to produce this evidence to demonstrate that, given the total amount of overtime worked by the employee, the imposition of additional involuntary overtime was not unreasonable. Whether the imposition of a requirement to work three hours on a weekend, Saturday or a Sunday, or a public holiday, was reasonable would depend on the amount of overtime an employee ordinarily works. See Brown & Premier Pet [2012] FMCA 1089 (6 November 2012); Premier Pet Pty Ltd trading as Bay Fish v Brown (No 2) [2013] FCA 167 (5 March 2013).

What does this mean?

In this case, the significant remuneration and other benefits paid to a senior manager, together with the nature of the role and level of responsibility, may be sufficient to ensure additional hours are reasonable.

Also, the fact that a requirement to work additional hours was set out in the offer of employment would also be relevant, though not determinative. The employer is also required to monitor employees for fatigue under the relevant workplace health and safety law.
 

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