The Australian Furniture Association (AFA) believe employers and employees in our industry must understand their rights and obligations regarding working hours. AFA Partner, Archer Thompson, specialise in commercial law, and delve into what constitutes reasonable or unreasonable working hours in the Workplace. Balancing employee well-being with the operational demands of our sector is essential to fostering a positive and productive workplace.Australian workplaces must balance employee well-being with organisational needs when determining ‘reasonable’ additional hours, which should be assessed on a case-by-case basis.
An employer who takes adverse action against an employee for refusing to work unreasonable additional hours may leave itself open to a legal claim. Conversely, employees who refuse to work lawful and reasonable additional hours may face disciplinary action.
The Legal Framework
The Fair Work Act 2009 (Cth) establishes a maximum weekly limit for full-time workers of 38 hours, plus reasonable additional hours. These provisions form part of the National Employment Standards. For workers who are not full-time, it is the lesser of 38 hours or the employee’s agreed ordinary weekly hours.
Employees may refuse to work additional hours if they are unreasonable. However, the Act does not define what reasonable additional hours are (and therefore what is not reasonable). Rather, it provides several factors to be considered in determining whether additional hours are reasonable. These include:
- Any risk to employee health and safety from working the additional hours
- The employee’s personal circumstances
- The needs of the workplace or enterprise and the usual patterns of work in the industry
- Whether the employee is entitled to overtime payments, penalty rates, or other compensation
- Any notice given by the employer of its intention to request the employee to work the additional hours and any notice given by the employee of their intention to refuse to work the additional hours
- The employee’s role and level of responsibility
- Whether the additional hours follow averaging provisions
- Any other relevant matter
Examples that expand on some of these factors in the workplace might include:
- Employee’s role/responsibility – the demands and expectations of a particular role can influence what is considered reasonable. For example, additional hours may be more expected in a managerial position compared to an entry-level role. Higher-level employees may be expected to work longer hours in certain situations and their remuneration may be reflective of this expectation.
- Personal circumstances – an employee’s family responsibilities or other commitments outside work need to be taken into account.
- Compensation and time off – if an employee is adequately compensated for additional hours or provided time off in lieu, it may be considered more reasonable.
- Industry norms – the usual working patterns in a particular industry can influence what is deemed reasonable.
- Averaging provisions – employers and employees whose work arrangements do not fall under a modern award or enterprise agreement may agree to average the employee’s full-time hours over multiple weeks (up to 26 weeks). This means they may work more hours in some weeks and fewer in others. Modern awards or enterprise agreements may also contain terms specifying how averaging provisions work. Averaging provisions will be relevant in determining whether additional hours are reasonable.
Payment for Additional Hours
Generally, whether an employee is entitled to be paid for additional hours or granted time off in lieu, depends on the terms of their employment contract, modern award, enterprise agreement, or other industrial instrument. For award-free and agreement-free employees, the Fair Work Act does not provide that employees should receive a higher rate of pay for working additional hours. Accordingly, in determining the reasonableness of additional hours, it may be appropriate to consider whether the worker is sufficiently compensated under their remuneration.
Employee Rights
Employees may refuse a request to work unreasonable additional hours and, in such cases, should communicate their reasons for refusing to work the additional hours clearly and respectfully.
Unreasonably refusing a request to work reasonable additional hours can have consequences. In some cases, it could lead to disciplinary action or even dismissal if deemed a serious breach of employment obligations.
Employer Obligations
Employers are legally obligated to ensure that their employees are not required to work unreasonable additional hours. Requests for additional hours should be reasonable and justifiable, taking into account the above factors. Taking adverse action against an employee, such as demoting or terminating them for refusing to work unreasonable additional hours or for making a complaint or enquiry about their employment conditions, could result in an adverse action or other claim.
Striking a Balance
Achieving a balance between employee well-being, productivity, and business needs is key. Strategies that employers and employees can adopt include:
- Clear communication – employers should set clear expectations about working hours and ensure employees understand their rights.
- Flexibility – offering flexible work arrangements, such as compressed work weeks or remote work options, can help employees manage their work-life balance.
- Regular reviews – employers should conduct regular reviews of workloads and working hours to ensure they remain reasonable.
- Open dialogue – employees should feel comfortable discussing their concerns about working hours with their managers.
Key Takeaways
The nature of work has evolved considerably over the past years with remote working arrangements blurring the boundaries between work and personal life. Determining what constitutes reasonable (or unreasonable) working hours can be complex and involves the consideration of several factors on a case-by-case basis.
Employees should stay informed about their workplace rights and exercise these rights if they feel their health, safety, or personal circumstances are being compromised.
Employers should strive to create a workplace culture that respects work-life balance and encourages open communication about working hours. They should be mindful of their obligations if requesting employees to work additional hours and engage in constructive discussions to create a workplace that fosters productivity and well-being.
This is general information only, and you should obtain professional advice that is relevant to your circumstances. If you or someone you know wants more information, click here for Archer Thompson. AFA Members enjoy an exclusive 20% discount off professional fees including a complimentary first consultation.