Please note: This article is intended to be brief information only and should not be relied or acted upon as legal advice. You should always seek legal advice tailored to your own individual circumstances. Please also note that this article is current as at the date of publication and the law may have subsequently changed since.

National vs State system employers

This article addresses issues concerning the employment of employees by “national system employers” under the Fair Work Act 2009 (Cth) (Fair Work Act).

Please be aware that some employees in Western Australia (ordinarily those employed by sole traders, partnerships and non-trading corporations) are employed by “state system employers”, being employers covered by the state industrial relations system under the Industrial Relations Act 1979 (WA).

If you are not sure whether an entity is a national or state system employer, you should seek legal advice.

Restrictions on an employee’s maximum weekly hours of work

The Fair Work Act places restrictions on the hours of work of employees. An employer cannot generally require a full time employee to work more than 38 hours per week plus reasonable additional hours. As to a part time employee, an employer cannot generally require them to work more than the lesser of 38 hours per week or their ordinary hours of work in a week (unless the additional hours are reasonable).

Section 62(1) of the Fair Work Act (being a provision of the National Employment Standards) provides that an employer must not request or require an employee to work more than the following number of hours in a week unless the additional hours are reasonable:

• for a full‑time employee, 38 hours; or
  
• for an employee who is not a full‑time employee, the lesser of:
  • 38 hours; and
  • the employee’s ordinary hours of work in a week.

The penalties for an employee which requires an employee to work unreasonable additional hours may be significant. A contravention of a provision of the National Employment Standards (more commonly know as the “NES”) will result in a contravention of section 44(1) of the Fair Work Act, which is a civil remedy provision. Section 545(1) of the Fair Work Act provides that the Federal Court or the Federal Circuit and Family Court may make any order the court considers appropriate (including providing for compensation and/or reinstatement) if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision. Under section 546 of the Fair Work Act, a relevant Court may also order a person to pay a pecuniary penalty that the court considers is appropriate. The maximum pecuniary penalty which may be imposed per contravention for a body corporate is currently $66,600 (although, for serious contraventions, the penalty may be greater). In addition to any liability of the employer, any individual involved in a contravention of the Fair Work Act by the employer may also be liable for a separate pecuniary penalty of up to $13,320 per contravention.

Outside of the Fair Work Act, an employer requiring an employee to work unreasonable additional hours could also fall foul of occupational health and safety legislation.

Can an employee refuse to work unreasonable additional hours?

An employee may refuse to work additional hours (beyond those provided in section 62(1)) if they are unreasonable: see section 62(2) of the Fair Work Act.

This statutory right to refuse unreasonable additional hours is a workplace right. An employer who took, or threatened to take, adverse action (including dismissal) against an employee who exercised (or proposed to exercise) such a workplace right to refuse unreasonable additional hours may contravene section 340(1) of the Fair Work Act.

What are “reasonable additional hours”?

There is no hard and fast rule as to when additional hours will be reasonable – all the circumstances will usually need to be taken into account.

What is “reasonable” is necessarily assessed on a case-by-case basis, by reference to the employee’s circumstances and the employer’s business in accordance with the terms of section 62(3) of the Fair Work Act: see Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2015] FCAFC 25 at [173].

Relevantly, section 62(3) of the Fair Work Act provides that, in determining whether additional hours are reasonable or unreasonable for the purposes of section 62(1), the following must be taken into account:

• any risk to employee health and safety from working the additional hours;
• the employee’s personal circumstances, including family responsibilities;
• the needs of the workplace or enterprise in which the employee is employed;
• 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;
• any notice given by the employer of any request or requirement to work the additional hours;
• any notice given by the employee of his or her intention to refuse to work the additional hours;
• the usual patterns of work in the industry, or the part of an industry, in which the employee works;
• the nature of the employee’s role, and the employee’s level of responsibility;
• whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
• any other relevant matter.

If a claim for a contravention of section 62(1) is brought by an employee, the employer may have the onus of proving that any additional hours were reasonable: see Fair Work Ombudsman v Foot and Thai Massage Pty Ltd (in liquidation) (No 4) [2021] FCA 1242 at [474].

Further information

If you require advice or assistance, please do not hesitate to contact us.