As an employer, rostering forms a significant part of your role. You want to balance the number of staff required to successfully operate your business with your employees' needs, as well as what may have been agreed upon in an employment contract. Notably, there are rules concerning the maximum number of hours employees can work in a week. This article explores the legal position of maximum working hours, unreasonable additional hours and averaging arrangements.
How Do You Determine Maximum Hours?
Maximum weekly hours form part of the National Employment Standards (NES). The NES apply to all workers covered by the public workplace relations system, regardless of whether any award, agreement or contract is in place.
The NES establishes the maximum weekly hours for workers. It also covers the circumstances in which an employee may refuse a request or demand to work more hours if they are considered unreasonable.
Additionally, the NES sets out arrangements for the averaging of hours of work under an award or agreement, or by agreement between an employer and an award/agreement-free employee.
An employer must not request or require an employee to work further than the following hours of work in a week unless the additional hours are reasonable:
- for a full-time employee, 38 hours; or
- for an employee other than a full-time employee, the lesser of:
- 38 hours; or
- the employee's ordinary hours of work in a week.
When calculating the hours an employee works in a week, you must include any hours of leave or absence (paid or unpaid) that are authorised by:
- the employer;
- a term of the employee's employment; or
- a Commonwealth, State or Territory law.
What is Considered Unreasonable?
Notably, an employee may refuse to work additional hours if they are unreasonable. To determine whether additional hours are viable for your employee, consider the following factors:
- work health and safety risks;
- the employee's personal circumstances;
- your business' requirements;
- the employee's entitlements, including overtime, penalty rates and other allowances;
- procedural fairness, including the notice given to the employee to work;
- the ordinary hours of employees in the industry or business; and
- the employee's duties and responsibilities.
What Averaging Arrangements Can Apply to Hours of Work?
Averaging Arrangements Under Industrial Instruments
It is important to check whether a modern award or industrial instrument applies to your employees. It may include provisions for the averaging of hours of work over a specified period that is greater than a week.
Over the course of the period, the average weekly hours should not exceed:
- for a full-time employee, 38 hours; or
- for an employee other than a full-time employee, the lesser of:
- 38 hours; or
- the employee's ordinary hours of work in a week.
An industrial instrument can provide for average weekly hours greater than the hours above. However, those additional hours must be considered reasonable.
In either situation, hours worked in excess of the weekly average will be treated as additional hours. The existence of an averaging arrangement is relevant to assessing whether or not the additional hours in a particular week are reasonable. Put another way, the additional hours (over 38 hours) that a full-time employee works in a week are more likely to be considered reasonable if they are part of a larger arrangement across several weeks, as opposed to a standalone week. In the averaging arrangement pattern, some weeks will be less than 38 hours and some more, but the average will be 38.
An Example
James is a full-time employee. Per the averaging arrangements in the relevant industrial award, full-time employees typically work 152 hours over four weeks (an average of 38 hours per week). James' actual work pattern throughout four weeks is as follows:
- Week 1 - worked 41 hours
- Week 2 - worked 54 hours
- Week 3 - worked 35 hours
- Week 4 - worked 22 hours
The existence of the averaging arrangement would be an important consideration in assessing whether the extra hours that James worked in Weeks 1 and 2 were reasonable. Other considerations include:
- the company's needs;
- James' personal circumstances;
- his health and safety; and
- his warning that he would be required to work the additional hours.
What if an Award or Enterprise Agreement Does Not Apply?
Employers and non-award/non-agreement employees might agree to an averaging arrangement in writing. The maximum averaging period is, however, 26 weeks.
Again, the average weekly hours over the period must not exceed:
- for a full-time employee, 38 hours; or
- for an employee other than a full-time employee, the lesser of:
- 38 hours; or
- the employee's ordinary hours of work in a week.
Where there is no applicable award or enterprise agreement, the agreement between the employer and employee can set out average weekly hours exceeding the above caps. However, such additional hours must still be considered reasonable.
Hours worked in excess of the above in a week will be treated as additional hours. Again, the averaging agreement between the employer and the employee will play a role in assessing whether the extra hours are reasonable.
Can I Compel My Employees to Enter an Averaging Arrangement?
No. It is important to note that an employer and employee are not required to enter an averaging arrangement. Put another way, a modern award may set out the steps and rules for entering into this kind of arrangement, but that does not mean that either the employee or the employer has to enter into one.
Indeed, under the general workplace protections provisions of the Fair Work Act 2009, it is unlawful for you to force (or attempt to force) an employee to make (or not to make) an averaging arrangement.
Key Takeaways
The law provides mechanisms to prevent employers from requesting their employees to work a significant amount of additional hours that are unreasonable. The National Employment Standards (NES) establishes the maximum weekly hours for workers, which is typically the following:
- for a full-time employee, 38 hours; or
- for an employee other than a full-time employee, the lesser of:
- 38 hours; or
- the employee's ordinary hours of work in a week.
The NES also sets out arrangements for the averaging of hours of work under an award or agreement, or by agreement between an employer and an award/agreement-free employee.
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