The National Employment Standards (NES) enshrine in the Fair Work Act 2009 (Cth) an obligation on employers not to unreasonably require or request full-time employees to work more than 38 hours per week.
A recent Federal Court decision provided a detailed examination of whether a requirement for an employee to work more than 38 hours per week was reasonable.
In Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (2022), an employee was contracted to work 50 hours per week, starting at 2am, 6 days per week. The Court found the employer had required the employee to work unreasonable hours in excess of 38 hours per week in contravention of the NES.
The employer argued the additional 12 hours a week were not an unreasonable requirement because the employee had agreed to an employment contract that required 50 hours of work a week.
The Court rejected this argument and ruled the additional hours were unreasonable because of the following factors:
- The risk to the employee’s health and safety from working the additional hours: The work was physically strenuous, involving using knives and machines to cut and dismember meat, and required starting work at 2am. Fatigue could affect alertness and concentration, and increase the risk of accidents in the workplace. These health and safety risks were accentuated in a work environment involving the use of knives and lifting of heavy weights.
- The employee’s personal circumstances, including family responsibilities: The employee was married with at least one child, with corresponding familial responsibilities. He was also a recent immigrant, having arrived in the country 3 weeks before commencing the job. He had little to no knowledge of Australian law, including his workplace rights. The employer failed to provide a Fair Work Information Statement, which would have provided some explanation of his basic workplace rights. These circumstances, together with the employee’s need to secure employment, made the employee more vulnerable to exploitation.
- The employee was entitled to receive, but was not actually paid, overtime or penalty rates for, or remuneration reflecting an expectation of, working additional hours. The applicable modern award suggested that the usual pattern of work in the relevant section of the meat industry was to start from 4am, not 2am. No evidence was provided to the alternative. This suggested that the additional hours outside the usual pattern of work – that is, between 2am and 4am – were not reasonable.