Are you working more hours than you’re legally required to?

The well-publicised dispute involving independent Federal Parliamentarian, Monique Ryan and her former Chief of Staff, Sally Rugg has brought the legal issue of what constitutes reasonable additional hours to the forefront. Many experts believe that this case will open the floodgates to widespread litigation as more Australian employees become aware of their potential exploitation in performing undefined reasonable additional hours.

The Fair Work Act’s interpretation of reasonable additional hours

The Fair Work Act 2009 (Cth) (FW Act) outlines the relevant provisions associated with reasonable additional hours. Under section 62 of the FW Act, an employer must not request or require a full-time employee to work more than 38 hours, or for an employee who is not a full-time employee, the lesser of 38 hours and the employee’s ordinary hours of work in a week.[1] Employees are also entitled to refuse working additional hours, beyond those they are normally permitted to work, if they are deemed as being unreasonable.[2]

Section 62(3) of the FW Act outlines ten factors which a court must take into consideration in assessing whether any additional hours worked over what is permitted, are reasonable. These factors are:

1. Any risk to employee health and safety from working the additional hours
2. The employee’s personal circumstances, including family responsibilities
3. The needs of the workplace or enterprise in which the employee is employed
4. 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
5. Any notice given by the employer of any request or requirement to work the additional hours
6. Any notice given by the employee of his or her intention to refuse to work the additional hours
7. The usual patterns of work in the industry, or the part of an industry, in which the employee works
8. The nature of the employee’s role, and the employee’s level of responsibility
9. Whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employer under section 64 of the FW Act; and
10. Any other relevant matter.[3]

Case examples assessing the application of reasonable additional hours

The interpretation of reasonable additional hours has been considered in previous Australian cases, most recently in the 2022 Federal Court case of Australasian Meat Industry Employees Union v Dick Stone Pty Ltd.[4] This case is current authority in relation to the issue of reasonable additional hours and was instrumental in providing insight into how the ten factors contained in the FW Act are to be applied and assessed. The facts of this case are as follows:

• Samuel Boateng (Mr Boateng) was a Ghanian immigrant who secured employment with Dick Stone Pty Ltd (Dick Stone) shortly after his arrival in Australia.
• He was employed under a written contract which required him to work 50 ‘ordinary work hours’ a week, from 2:00am to 11:30am on weekdays and 2:00am to 7:00am on Saturdays, plus reasonable additional hours as requested.
• Throughout his employment, Mr Boateng consistently worked 50 hour weeks, while receiving a standard rate of pay and commonly worked additional hours for which he was paid overtime rates.
• The employees of Dick Stone were covered by the Meat Industry Award 2010.
• Mr Boateng and his union, being the Australasian Meat Industry Employees Union, commenced proceedings against Dick Stone and put forward a number of allegations which included that Dick Stone had failed to comply with section 62 of the FW Act by requiring Mr Boateng to work more than 38 hours a week.
• In reaching a finding on the reasonableness of the additional hours that Mr Boateng was required to work, Katzmann J considered whether the hours he was requested to work, were ‘unreasonable’ within the meaning of section 62 of the FW Act.
• Dick Stone submitted that the 50 ordinary hours of work were a term of Mr Boateng’s contract of employment into which he freely entered and as such, it could not be said to have been a requirement of his employer or a unilateral request.
• In reaching their decision on the issue surrounding section 62, Katzmann J considered all 10 factors provided for under section 62(3) of the FW Act.
• Katzmann J ultimately decided that having regard to all the relevant circumstances, Dick Stone was in contravention of section 62 of the FW Act by requiring and requesting Mr Boateng to work 12 additional hours every week of his employment and that request was not reasonable.

Another helpful example of where reasonable additional hours has been considered by the courts was the 2016 Federal Circuit Court case of Gorvel & Ors v Employsure.[5] The facts for this case are:

• This case involved three employees bringing forth an action against their employer seeking compensation for unpaid overtime.
• Each of the applicants were lawyers formerly employed by the respondent.
• The applicants sought payment for alleged overtime worked based on working 45 hours each week.
• The applicants alleged that they each worked 45 hours per week which, they asserted, was in contravention of the maximum hours provided by the National Employment Standards (NES) set out in the FW Act.
• The NES provides that employees are only permitted to work a maximum of 38 hours a week.
• However, the respondent contended that as each of the applicants took an hour lunch break each day, they in fact worked 40 hours each week, and thus only 2 hours above the NES requirement for maximum working hours.
• In reaching a decision on the reasonableness on the alleged extra hours worked, Altobelli J considered the relevant factors outlined in section 62(3) of the FW Act.
• In the end, the Court rejected the applicants’ contention that they worked 45 hours per week, in circumstances where the evidence indicated that each took a one hour lunch break indicating that the most they could have worked was 40 hours per week.
• Altobelli J did not consider working two additional hours per week as being unreasonable, taking into account the legal nature of the work each of the applications were doing and the culture of the legal profession which is commonly associate with working longer hours.

Conclusion

Both of the above cases have contrasting outcomes due to the nature of the employment relationship and the circumstances surrounding each matter. However, in any event, each of the 10 factors provided for under section 62(3) of the FW Act must be considered to determine whether working additional hours above the maximum 38 hours provided for under the FW Act are reasonable or unreasonable.

In light of the above cases and the increased attention into the reasonableness of additional hours, employers must ensure that they are prepared for potential claims that may arise.

This can be achieved by reviewing the employment contracts of all employees and ensuring they are consistent with the requirements of reasonable additional hours. Gadens has extensive experience in drafting employment contracts to ensure compliance with legislative requirements.

To enquire as to how Gadens may be able to assist, please contact Jonathon Hadley in Brisbane by email Jonathon.hadley@gadens.com or phone +61 7 3231 1653.

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Authored by:
Jonathon Hadley, Partner
Braden Wong, Paralegal

[1] Fair Work Act 2009 (Cth) s 62(1).

[2] Ibid s 62(2).

[3] Ibid s 62(3).

[4] [2022] FCA 512 (Katzmann J).

[5] Gorval & Ors v Employsure [2016] FCCA 231 (Altobelli J).