Did you know that your employees are entitled to maximum weekly working hours?

In your employment contracts, you must consider an employee’s entitlement to maximum weekly working hours that arises under:

• a modern award or enterprise agreement; or
• the National Employment Standards (NES).

Modern awards and enterprise agreements typically cap the number of ordinary hours an employee can work:

• each day (e.g. 8 hours per day); and
• each week (e.g. 38 hours per week).

In which case are working hours treated as overtime?

Hours worked in excess of ordinary time are usually treated as overtime.

The NES sets a standard of an average of 38 hours of work per week for national system employees not covered by a modern award or enterprise agreement.

The NES does, however, allow national system employers to require or request their employees to work reasonable additional hours.

Reasonable additional hours are additional hours worked each week in excess of 38 (or agreed or usual weekly hours for part-timers or casuals) that are considered reasonable after certain relevant factors have been taken into account, including:

• Will there be a risk to the employee’s health and safety from working the additional hours?
• Are the additional hours likely to affect the employee’s personal circumstances, including family responsibilities?
• What are the needs of the workplace or business in which the employee is employed?
• Is the employee entitled to receive overtime payments, penalty rates or other compensation for working additional hours?
• Have you given the employee notice of the additional hours?
• Has the employee given you sufficient notice of any intention to refuse to work the additional hours you have requested?
• What are the usual patterns of work in the industry in which the employee works?
• What is the nature of the employee’s role and level of responsibility?
• Are the additional hours in accordance with:
  • averaging terms included in a modern award or enterprise agreement that applies to the employee; or
  • an agreed written averaging arrangement, between the employer and an award- or agreement-free employee?

The NES also:

• provides a cap for part-time or casual employees on ordinary hours worked per week based on their agreed hours or usual hours;
• gives employees the right to refuse to work hours in addition to ordinary hours if they are unreasonable; and
• provides for a maximum averaging period of 6 months.