Demystifying reasonable additional hours

What are they? Can they be refused? What needs to be paid?

The publicity surrounding the recent claim brought by Sally Rugg, the former chief of staff for federal MP Monique Ryan, has highlighted the maximum weekly hours provisions in the Fair Work Act (Act) and the rights of employees to refuse to work unreasonable additional hours.

What are reasonable additional hours and When can an employee refuse to work additional hours

Section 62 of the Fair Work Act (Act) provides that an employer must not request or require a full time employee to work more than 38 hours in a week (or the lesser of 38 hours and the employee's ordinary hours of work for part time employees) unless the additional hours are reasonable (Maximum Weekly Hours).

Sections 63 and 64 of the Act provide for the averaging of Maximum Weekly Hours over a specified period, which in practise are generally limited to pay cycles.

An employee can refuse to work more than their Maximum Weekly Hours if the additional hours are determined to be unreasonable.

 Considerations whether additional hours are unreasonable include:

• health and safety risks arising from working the additional hours;

• personal circumstances of the employee, including family responsibilities;

• needs of the workplace or enterprise where the employee is employed;

• an entitlement to receive remuneration that reflects an expectation of working additional hours or overtime, penalty rates or other compensation for working additional hours;

• notice given by the employer of any request/requirement to work the additional hours;

• notice given by the employee of their intention to refuse to work the additional hours;

• usual patterns of work in the industry in which the employee works;

• nature of the employee's role and level of responsibility;

Paid or unpaid hours of leave or absence are included when calculating Maximum Weekly Hours and reasonable additional hours, if the hours are authorised by the employer, employment contract, award/enterprise agreement or relevant law.

Entitlement to be paid overtime, penalty rates or other compensation

The Act has no provision for that establishes an entitlement to penalty or overtime payment and does not specify the quantum of payment to an employee for additional reasonable hours, other than as a consideration in determining when an employee can reasonably refuse to work more than their Maximum Weekly Hours and by providing for the National Minimum Wage (which is the minimum hourly rate that must be paid to an employee).

Relevant modern awards or enterprise agreements clauses (Clauses) set the requirements for calculating and payment for overtime, penalties or other compensation (Overtime) for reasonable additional hours of work.

Therefore there can be situations where taking annual leave during a pay cycle may entitle an employee to refuse to work additional hours but not to payment of overtime if they do not actually work additional hours. Employers should contact CER for specific advice in such circumstances.

A future “right to disconnect”

On 9 March 2023, the Senate Select Committee on Work and Care recommended legislating a right for workers to disconnect outside of work hours, which broadly means that after an employee has “finished work for the day”, they will not be required to respond to work emails, text messages, telephone calls or other communications.

Employers should start to consider how they can prepare for any changes, including their current use of work technology outside of ordinary work hours.

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Summary

Employers, who require employees to work in excess of the Maximum Weekly Hours must ensure they are aware of an employee’s right to refuse to work unreasonable additional hours and take steps to establish that the additional hours are reasonable, which include:

• ensuring that their employment contracts include a set off clause and clearly identify

  • the nature, scope and responsibility of the position;

  • the needs of the business; and

  • the potential or actual requirement for additional hours to be worked.

The “hours of work” clause should specify the additional reasonable hours that may be regularly required to be worked.

• examining the hours of work of their employees to ensure that additional hours are both reasonable and remunerated correctly.

• ensuring notice is given to employees as earlier as possible of any request or requirement to work additional hours.

• complying with payment obligations under an applicable modern award or enterprise agreement, including payment of overtime /penalties.

• any risks to health and safety are assessed and addressed.

Catholic Employment Relations is always available to advise and assist employers to ensure compliance with their obligations.