What are 'reasonable' additional hours?

Under section 62 of the Fair Work Act (“FW Act”), the ordinary hours for a full-time employee cannot exceed 38 hours per week. Even so, an employer may require a full-time employee to work beyond this, if the additional hours are 'reasonable'.

Q: What are reasonable additional hours? Is there a fixed number of additional hours an employee can work per week, before this becomes unreasonable? 

A: In short, reasonable additional hours are determined according to the criterion in section 62(3) of the FW Act. A reasonable requirement for one employee to work additional hours may be unreasonable for another employee. This issue depends on the application of various factors, including the employee’s family circumstances, the notice given, the employee’s role and level of responsibility.

There is, accordingly, no fixed number of reasonable additional hours an employee can work per week.

This short answer aside, the recent decision of Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512 (6 May 2022) provides added instruction.

In this case, the employer engaged an employee to work in a meat wholesaler. On commencement, the employer gave the employee a letter of offer, describing his “ordinary hours” as 50 hours per week. The employee was required to work from 2 am to 11.30 am Monday to Friday, and from 2 am to 7 am on Saturdays. 

In judgement, Justice Katzmann held this arrangement clearly constituted unreasonable additional hours and breached section 62 of the FW Act. In support of this decision, Justice Katzmann emphasised:   

• The usual starting work time in the meat industry was 4 am, rather than 2 am.
• The employee’s hours exhausted him and were unreasonable. This position remained unchanged, irrespective of whether most of the employees preferred a 50-hour week.
• The employee was a recent immigrant and as such, was likely unfamiliar with Australian law.
• The letter of offer did not refer to the employee’s entitlement to overtime nor the Meat Industry Award. 
• The employer failed to give the employee a copy of the Fair Work Information Sheet. 

The employer also failed to pay the employee various entitlements such as overtime under the Meat Industry Award. The matter is now listed for a further hearing in July 2022, to consider applicable penalties and compensation. 

A breach of the National Employment Standards or a Modern Award, exposes an employer to fines of up to $66,600 for each contravention. We recommend that members seek advice from ECA Legal on these issues and their employment contracts.

Disclaimer: This summary is a guide only and is not legal advice. For further information, call ECA Legal on (08) 6241 6129 or email ecalegal@ecawa.org.au.