By Charles Power
The National Employment Standards (NES) of the Fair Work Act 2009 (Cth) entitle an employee not to work more than the following number of hours in a week unless the additional hours are reasonable:
- for a full-time employee – 38 hours; or
- for a worker who is not a full-time employee – the lesser of either 38 hours or the employee’s ordinary hours of work in a week.
The employee may refuse to work additional hours if they are unreasonable. But what exactly is reasonable?
A range of factors can determine whether additional hours are reasonable or unreasonable, including the employee’s personal circumstances, such as family responsibilities.
When an employee works excess hours in accordance with averaging terms in a modern award or enterprise agreement, the averaging terms will be relevant in determining whether the additional hours are reasonable.
In CFMEU v Ron Southon Pty Ltd (2016), the Fair Work Commission (FWC) considered whether a working hours provision in an enterprise agreement submitted for approval contravened the NES and therefore rendered the agreement incapable of being approved. The provision was for ordinary hours to be 40 hours per week, averaged over a four-week cycle.
It was argued the provision contravened the NES, in that it did not give employees covered by the agreement the right not to work hours in addition to 38 a week when the requirement to work these additional hours was unreasonable.
What the FWC ruled
The FWC ruled that the agreement provisions, by creating the potential for employees to contract to work in excess of 38 hours per week, did not itself contravene the NES. However, to the extent that any employee who has contracted to work more than 38 hours in a week is then unable to alter that arrangement to meet a particular personal circumstance, and the issue is incapable of resolution other than at the discretion of the employer, the agreement did contravene the NES.
This ruling has implications for employment contracts that stipulate weekly ordinary hours for an employee will be in excess of the level stipulated by the NES. These employers should include a provision in the employment contract or policies that acknowledges that if the employee’s personal circumstances, including family responsibilities, make it difficult to work these additional hours in particular cases, the employee should approach management.
This is recommended, particularly in a case when there are no other factors to offset any unreasonable impact of the additional hours, such as high remuneration.