The National Employment Standards states the maximum weekly hours a full-time employee can be required to work is 38, plus reasonable additional hours.

When determining whether additional hours are reasonable, the following factors need to be considered:

  • any risk to an employee’s health and safety from working additional hours
  • an employee’s personal circumstances, including family responsibilities
  • the needs of the workplace where an employee is employed
  • whether an employee is entitled to receive overtime payments, penalty rates, or other compensation for working additional hours
  • notice (if any) given by an employer of any request or requirement to work the additional hours
  • the notice (if any) given by an employee of their intention to refuse to work the additional hours, and
  • any other relevant matter.

An employee’s weekly hours include any authorised hours of leave, or absence, whether paid or unpaid, that the employee takes in the week.

The reasonableness of additional hours was considered by the (then) Federal Magistrates Court and, on appeal, the Federal Court. The decision demonstrated that an employee’s ‘personal circumstances’ are to be understood in the broad sense and are not limited to family commitments or caring responsibilities.

Employers should seek advice before insisting on any changes to an employee’s working hours. See Brown & Premier Pet [2012] FCMA 1089; Premier Pet t/a Bay Fish v Brown [2013] FCA 167.

What this means is there is no prohibition under the Fair Work Act on working additional hours, just an opportunity for an employee to refuse in certain circumstances.

Averaging of hours

An employer and an award/agreement-free employee may agree in writing to averaging hours of work over a maximum period of 26 weeks. Modern awards and enterprise agreements may also include terms regarding averaging hours of work over a specified period.

In both cases, the average weekly hours over the period must not exceed:

  • for a full-time employee – 38 hours
  • 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.

An averaging arrangement in a new award would be a relevant factor in determining whether additional hours in excess of 38 per week were reasonable or unreasonable.

Part-time employees

The principle of reasonable additional hours under the NES also applies to part-time employees. For example, it may be considered unreasonable to ask a part-time employee to increase their hours from 15 to 30 hours a week.

Modern awards

A modern award usually has these conditions relating to hours of work:

Ordinary hours for day workers – detailing the days of the week on which ordinary hours may be worked

Ordinary hours for shift workers – definitions of day, afternoon and night shift, including permanent night shift and, in some instances, early morning shift and broken shifts. Also, a definition of the type of shift roster that constitutes ‘continuous’ or ‘non-continuous’ shift work. Also, whether 12-hour shifts may be worked under the award

Span of ordinary hours – the award will provide a span for day workers, usually 6am to 6pm, in which ordinary hours may be worked

Averaging of ordinary hours – allowing provision for a rostered day off, including substitution and accumulation of rostered days off, arrangements of ordinary hours exceeding eight hours on any day

Time off in lieu of overtime

Make-up time – an arrangement where an employer allows an employee to take time off during ordinary hours and work those hours at a later time, during the spread of ordinary hours provided by the award.

Change of hours of work

When an employer has fixed start and finish times for day workers, these times should not be altered without giving at least one week’s notice (for weekly hired employees). All time worked before or after the start and finish time is regarded as overtime, even though the hours worked do not exceed the stipulated limit, or the span of such hours falls within the spread of hours allowed by the instrument.

An employer should attempt to be flexible when implementing any change in hours. This may involve changes by work area rather than across-the-board, to be implemented at a reasonable future date. New hours or rosters should attempt to integrate business needs and lifestyle concerns.

Meal breaks

A reference to a ‘meal break’ usually means the break is unpaid, while a ‘crib break’ (in the case of shift workers) is usually paid. An unpaid break does not form part of an employee’s ordinary hours of work, whereas any paid break would be counted in an employee’s ordinary weekly hours.

An employee who performs work during an unpaid break is usually paid at the appropriate overtime penalty rate until the employee takes the required break. Reference should be made to the relevant modern award or enterprise agreement to determine an employee's entitlement.