All I do is work, work, work, work, work, work. – Rhianna

We have all had those times in our life where Rhianna’s song seems to be the perfect anthem. You know, when all you do is work, work, work, work, work, work and the rest of it just seems a blur. But if you find yourself subject to a workload that is taking up your evenings and weekends, and you’re subject to a continually mounting workload, it may be worthwhile to look at your employer’s legal ability to require all those lost hours of personal time. Alternatively, you may be an employer and are curious as to what you can actually expect from your employees.

The Law

In Australia, the Fair Work Act and the National Employment Standards govern the working conditions of employees, as well as any applicable award or enterprise agreement.

A full-time working week in Australia typically consists of 38 hours, and this is how employers should interpret a “full time” role. But before you start clocking off at 5 pm on the dot, it is also important to note that an employer can require an employee to work ‘reasonable additional hours’. What is ‘reasonable’ in any particular employment relationship depends on a number of subjective factors, including:

  • The nature of the role;
  • The level of remuneration; and
  • The seniority of the employee.

Generally, employers are not entitled to pay employees below the prescribed minimum wage or the wages prescribed by any applicable award. Accordingly, giving a minimum wage administrator a workload that requires working a 50+ hour per week would result in the level of remuneration falling below the prescribed minimum wage, and not be enforceable.

Similarly, if your employment is under threat because you’re just not getting through the workload, a subsequent termination based on failure to meet the demands of the job may be deemed an unfair dismissal. This depends on the matter’s individual factors as well as whether such dismissal could be deemed harsh, unfair or unreasonable in the circumstances.

What Should an Employee Check?

As a minimum, if your life is beginning to sound like a Rhianna song, and you’re wondering if your employer’s demands are enforceable at law, you should check:

  1. The terms of your contract and, in particular, whether it requires you to work any reasonable additional hours;
  2. The level of pay received per hour on the basis of actual hours worked, and whether that falls above the minimum wage: and
  3. The terms of any applicable award or enterprise agreement.

Key Takeaways

Here, an employment lawyer will be able to help, by examining these documents and the relevant legislation to clearly advise you of your legal rights and obligations.

Also, just talking to your employer is often a good start, and will place on record any issues you have about the working hours. If you are unfairly dismissed, or request a change in your job requirements, you can rely on these discussions.

Knowing your rights and obligations is an important factor in being able to renegotiate terms, and introducing another Rhianna song back into your life – ‘cheers, to the freakin weekend!’

Emma Jervis
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