If you are an employer in the national IR system, you cannot currently ask your full-time employees to work unreasonable additional hours in excess of 38 a week.
Next year, this requirement will become even more onerous. This is because under the National Employment Standards, your employees will be able to lawfully refuse to work unreasonable additional hours.
So, what are reasonable additional hours?
This recent Court ruling gives us an example of what constitutes “reasonable additional hours”.
An electrical fitter working at a mine maintenance team brought a case against his employer for asking him to work what he claimed were “unreasonable additional hours”.
The employee used to be on a rotating three-week Monday to Friday roster, which averaged 40 hours a week. However, in November 2008, the company introduced a 44 hour, two-week cycle of four shifts (three 12 hours and one eight), still Monday to Friday.
The mineworker, who is married with 4 children (2 at university), argued that the additional hours disrupted his family life, including his ability to take his sons to sports training sessions and coach their soccer team, plus family mealtimes.
The fact that additional hours impact adversely on an employee’s family responsibilities is a factor that must be taken into account when determining whether additional hours required to be worked in excess of 38 a week are reasonable.
However, in this case, the Court ruled that the benefits to the employer of the new rosters outweighed the detriment to the employee. The Court also said that the work pattern allowance and extra RDOs arising out of the new shifts adequately compensated the employee. Therefore the extra rostered hours over the statutory 38 hours were deemed to be reasonable.
(MacPherson v Coal & Allied Mining Services Pty Limited [2009] FMCA 881(9 September 2009).
Remember: Next year when the NES are brought in, your employees will be able to refuse to work unreasonable additional hours.
How to avoid disputes over additional hours
In order to avoid any disputes over additional hours, you should let your employees know the following (ideally in writing at the next pay review):
“Your remuneration is designed to adequately compensate you for the additional hours that we require you to work in excess of 38 a week. However if a particular issue arises for you at any time regarding the impact of working those additional hours (i.e. it is adversely impacting on your family responsibilities) talk to us and we will see if there is anything we can reasonably do to mitigate that impact.”
For more details on how you can make sure your business is prepared for all the Fair Work Act changes, take a 14 day FREE trial of the Employment Law Practical Handbook. Click here to find out more!
Regards,
Charles Power
Editor-in-Chief
Employment Law Practical Handbook
Tags: additional hours, Court, employees, employer, Employment Law Practical Handbook, fair work act, National Employment Standards, national IR system, unreasonable additional hours
