Recent attention on the right to disconnect means it is a good time to revisit the underlying requirements of hours of work. The Fair Work Act National Employment Standards (NES) are the foundation of employment law legal obligations. This is because these standards apply to all employees regardless of level and income and cannot be contracted out of. The first standard relates to maximum weekly hours of work. This is to be contrasted with the forthcoming right to refuse to connect outside of work hours.  The standard provides that an employer must not request or require a full time employee to work more than 38 hours per week unless the additional hours are reasonable. Note this is a little different to how most common law contracts address the issue which is usually to require 38 hours a week plus additional reasonable hours. It is wise to clarify how many extra hours are envisaged by the employer prior to accepting a job. The response will give some clues to the culture of the organisation.  A few hours a week may be reasonable but long hours may be less acceptable.

An employee may refuse to work additional hours if they are unreasonable, taking into account:
a. any risk to employee health and safety from working the additional hours;
b. the employee’s personal circumstances, including family responsibilities;
c. the needs of the workplace or enterprise in which the employee is employed;
d. 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;
e. any notice given by the employer of any request or requirement to work the additional hours;
f. any notice given by the employee of his or her intention to refuse to work the additional hours;
g. the usual patterns of work in the industry, or the part of an industry, in which the employee works;
h. the nature of the employee’s role, and the employee’s level of responsibility;
i. whether the additional hours are in accordance with averaging terms included in a modern award or enterprise agreement or an averaging arrangement between the employer and employee under the Act; and
j. any other relevant matter.

Modern awards and enterprise agreements can provide for averaging of hours over a specified period, with the average hours not to exceed 38 for a full time employee. Where there is no modern award or enterprise agreement with application, an employer and employee can agree in writing to an averaging arrangement over a maximum of 26 weeks. Award covered employees are also subject to award requirements for overtime and penalty rates. It is common for employment contracts with award free employees to include specific provision for working additional reasonable hours. Whilst not required by law, it is wise for award free employees to keep timesheets recording their work hours.

If an employee considers the hours they are being required to work to be unreasonable, then consideration should be given to the above factors before asking the employer to reconsider their requirement. For award or enterprise agreement employees or if the contract of employment has a dispute resolution provision, a dispute about the requirement may be able to be notified to the Fair Work Commission (FWC). The FWC will then seek to conciliate the dispute between the parties. The right to disconnect may add a further option when it comes into force.  An outright refusal may be risky for an employee if the employer considers their direction to be reasonable and could result in termination of employment. The dismissed employee may be able to bring an unfair dismissal claim or potentially a claim of breach of workplace rights for exercising their right to refuse to work additional hours that are not reasonable.  Non award employees in particular also need to take into account whether their remuneration reflects an expectation of working additional hours.

Disputes can also arise where there is no specific direction by an employer to work additional hours but an employee considers it necessary to work longer hours in order to get the job done. Sometimes an employer will say that the employee is taking longer than necessary to complete the duties. Employees should raise their concerns with the employer at the earliest opportunity and if the employer is not prepared to make changes, then the employee may need to look for other employment.  Award or enterprise agreement covered employees may be able to seek additional payment for their work but this will rarely be the case for non award employees. Contractual claims for payment for unreasonable additional hours are difficult to make.

Please contact us if you would like any further information or help.