Whenever your employees are working additional hours, your role as their employer is to make sure that those hours are reasonable. This is because, believe it or not, employees are well within their rights to refuse working unreasonable additional hours.

When we speak of additional hours, we are referring to employees who are not covered by an award or enterprise agreement. However, the National Employment Standards (“NES”) still apply.

Under the NES (available at http://www.fairwork.gov.au/employee-entitlements/national-employment-standards), the maximum weekly hours are 38 ordinary hours a week.

For those employees that are covered by an award or enterprise agreement, additional hours are regarded as ‘overtime’. This means that any hours worked beyond the maximum number of hours allocated under the award or enterprise agreement are considered overtime hours.

When can you ask employees to work additional hours?

Under the NES, additional hours means:

  • any number of hours above 38 hours with respect to full-time employment on a weekly basis;
  • any number of hours above the agreed ordinary hours on a weekly basis;
  • any number of hours above 30 hours on average per week, for enterprise agreement or modern awards (as per averaging term).

When is it reasonable to work additional hours?

If you need an employee to work overtime, there are a number of factors that you need to consider to determine whether or not the request to work additional hours is reasonable:

  • whether the health and safety of the employee (or others) is at risk;
  • whether the personal circumstances will be impacted by the request, i.e. family commitments;
  • how important it is, considering the type of business you operate;
  • whether compensation will be provided to the employee;
  • the extent of notice;
  • the extent of the employee’s notice to refuse a request for additional hours;
  • the role of the employee and the level of responsibility the employee has in the business;
  • whether there is an averaging period in place;
  • whether the request comes on a public holiday; or
  • the extent to which the employee has already worked additional hours recently.

When is it unreasonable to work additional hours?

In some circumstances, it may be unreasonable to require your employees to work additional hours. Such circumstances include, but are not limited to, the following:

  • the employee’s health and safety being in danger (stress/fatigue);
  • the personal circumstances of the employee would be negatively impacted; or
  • the maximum hours have been exceeded and there is no averaging period in place.

Conclusion

If you are unsure whether you can ask your employees to work additional hours or have other questions related to employment law, please contact LegalVision on 1300 544 755. Our employment lawyers have in-depth experience in assisting small business navigate the complications that arrive when it comes to staff and staff responsibilities.

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