Maximum weekly working hours
Under the Fair Work Act, employers cannot ask or require employees to work beyond their ordinary weekly hours unless it is reasonable. For full-time employees, this means they cannot be required or requested to work more than 38 hours per week, unless the additional hours are reasonable.
It is the employer’s responsibility to show that any additional hours are reasonable. Employees have the right to refuse extra hours if they believe they are unreasonable.
What are reasonable additional hours?
The reasonableness of additional hours is assessed on a case-by-case basis. Several factors help determine whether the extra hours are reasonable or unreasonable. These factors include, but are not limited to:
- Health and safety: The risk to an employee’s health and safety is a significant factor. While the physical risks of long and irregular hours are well known, psychosocial risks such as reduced ability to handle stress, increased risk of errors, and higher rates of psychological injuries, are also important considerations.
- The needs of the workplace: In some industries, additional hours during busy periods or for time sensitive projects are necessary. However, ongoing additional hours due to an unattainable workload, especially without adequate support or resources, may be deemed unreasonable.
- Industry norms: Comparing the practices of other businesses in the same industry provides a yard stick by which to determine if an employer’s request is reasonable in the wider industry context.
- Entitlement to compensation: If an employee’s pay package accounts for additional hours, those hours are more likely to be considered reasonable. However, if an employee is entitled to extra payment for additional hours (like overtime) and the employer fails to provide it, those hours may be considered unreasonable.
- Roles and responsibilities: It is generally more reasonable for a manager to work extra hours compared to other employees.
- Other relevant factors: Additional factors include; unsociable work hours, an employee’s personal circumstances (like family responsibilities), and the impact on their weekends and personal time.
While an employer’s request for reasonable additional hours can be a lawful and reasonable direction, allowing for disciplinary action if an employee fails to comply, employers should proceed with caution.
If an employer takes adverse action against an employee who complains about or refuses to work extra hours, they may face legal penalties if those additional hours are deemed unreasonable.
What if the nature of the job requires it?
Not all additional hours are worked at the direct request of the employer. Employees who have large workloads, such as those due to staff shortages or those who are regularly required to complete time sensitive projects, often exceed their ordinary working hours to manage their tasks.
Employers have a statutory duty to ensure, so far as reasonably practicable, that the workplace is without risk to the health and safety. Workplaces where employees consistently deal with excessive and unattainable workloads – either by design or due to employer oversight – are likely to jeopardise employees’ psychological safety.
These risks are amplified in workplaces where employees:
- Handle traumatic material or are otherwise at risk of developing vicarious trauma.
- Engage with vulnerable or aggressive clients.
- Are not provided with appropriate support or resources.
- Are regularly provided with unrealistic or tight deadlines in which to complete their tasks.
- Are expected to be available or responsive outside of work hours or when on holidays.
Beyond safety concerns, sustained and unattainable workloads can lead to increased staff turnover. Employers who ignore these issues may face unfair dismissal claims, workers’ compensation disputes, and even criminal penalties as a result of work health and safety breaches.
What is the impact of the “right to disconnect” on ordinary hours?
Starting on 26 August 2024, the “right to disconnect” will come into force. This right allows employees to refuse to monitor, read, or respond to work-related communications outside their ordinary working hours, unless such refusal is unreasonable.
The right to disconnect empowers employees to disconnect outside of their usual working hours. It does not impose a positive obligation on employers, meaning employers can still contact employees outside of hours. However, employees generally have the right to ignore such communications.
From a legal perspective, we expect that the right to disconnect will impact adverse action / general protections claims. If an employee is disciplined for not completing work within their usual hours or for not responding to employer communications outside of hours, employers could face legal claims. In order to avoid such allegations, employers should exercise caution before taking action against an employee who refuses to complete work outside of their usual hours.
Final thoughts
Employers may sometimes need employees to work extra hours, but this should not compromise their right to a safe working environment.
- Monitor workloads: Ensure workloads are manageable, even if employees don’t complain. Address any issues promptly to avoid legal risks.
- Monitor working hours: Keep accurate records of hours worked to ensure compensation reflects actual hours needed for the job.
- Include set-off clauses: Specify in employment contracts that remuneration covers reasonable additional hours. Include a ‘set-off’ clause to prevent underpayment claims.
These clauses need to be carefully drafted to be effective. Consider having your contracts legally reviewed if they are more than two years old.
If you have any questions or need assistance, please contact Charli or Emily.
| Charli Barclay Senior Associate T: (03) 6235 5125 E: cbarclay@pageseager.com.au |
 |
| Emily Creak Principal M: 0400 955 183 E: ecreak@pageseager.com.au |
 |
Published: 30 July 2024
