In May’s HR Breakfast Club Forum, BAL Legal Director, Gabrielle Sullivan of the Employment & Investigation Team, discussed the implications of a recent Federal Court case on the interpretation of ‘reasonable’ and ‘safe’ additional work hours in the National Employment Standards in the Fair Work Act 2009 (the ‘Act’).
At the Forum, Gabrielle also discussed the 4-day work week concept recently introduced for consultation by the ACT Government.
Gabrielle started by briefly discussing the case of Rugg v Commonwealth of Australia as represented by the Department of Finance (Rugg). Ms Sally Rugg was the Chief of Staff for Dr Monique Ryan MP, the Teal representative for Kooyong, Victoria. Ms Rugg made an application against her former employer in the Federal Court of Australia arguing, among other things, that she had been made to work long hours, especially during the ‘sitting weeks’ of parliament. The matter has since settled out of court, but Ms Rugg’s application drew attention to the concept of ‘reasonable additional hours’ under the Act.
Gabrielle then provided a brief overview of the relevant provision regarding ‘reasonable additional hours. Section 62(1) of the Act states that an employer must not request or require an employee to work more than a certain number of hours unless the additional hours are ‘reasonable’. Section 62 is a provision under the National Employment Standards (NES), meaning an employer may be liable under the civil penalty provisions of the Act if they breach it.
In the case of a full-time employee, the maximum weekly hours are 38, and for others – the lesser of 38 hours or the employee’s ordinary hours of work in a week. Section 62(2) provides that an employee may refuse to work unreasonable additional hours.
Gabrielle then ran through the factors that must be considered under section 62(3) to determine what additional hours are ‘reasonable’ or ‘unreasonable’. These factors include:
To get a better understanding of the practical implications of section 62(3), Gabrielle discussed the leading case of Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263 (Dick Stone Case), where Justice Katzmann applied the criteria under section 62(3) to a case involving Mr Samuel Boateng, an employee in one of Dick Stone’s meat processing plants, who had been made to work 50 “ordinary work hours” per week pursuant to his employment contract.
The Union initiated proceedings in the Federal Court of Australia, alleging (among other things) that Dick Stone breached the Act by failing to comply with s 62 of the Act by requiring or requesting Mr Boateng to work more than 38 hours a week.
Mr Boateng and Dick Stone had agreed to the following terms in letter of employment without discussion about terms, conditions, hours of work or pay.
Hours: The ordinary work hours for a full-time week are 50 hours per week. Your ordinary work hours will initially be within the range 2:00 am to 11:30 am Monday to Friday, 2:00 am to 7:00 am Saturday. This may at some stage in the future need to be varied from this range due to business requirements.
Additional Hours: There is the expectation that when requested by the Company employees shall work a reasonable number of additional hours.
Notably, the letter of offer did not mention the pay rate. Mr Boateng was paid somewhere between the ordinary rate and the overtime rate for the additional hours he worked.
In her decision, Justice Katzmann found that Dick Stone had breached the NES by requiring Mr Boateng to work 50 hours a week.
Gabrielle went into detail on how Justice Katzmann weighed up the different factors under section 62(3). Her Honour seemed particularly persuaded by issues around:
Under the ‘health and safety’ consideration, Justice Katzmann was concerned about fatigue, mental and physical exhaustion, increased risk of accidents in the workplace (especially one with several physical hazards) and the impact this could have over the long term on contributing to ill health.
Using Ms Rugg’s case as a practical example, Gabrielle discussed how section 62(3) may be applied pursuant to Justice Katzmann’s decision in the Dick Stone Case.
Is 4-day working week the future of work in the ACT?
Gabrielle then held a brief discussion around the ACT Government’s consultation regarding the 4-day work week.
Gabrielle looked at how other employers in other states and countries implemented a 4-day work week and how the concept may look like in the public service.
Drawing from the Dick Stone Case, Gabrielle recommends that all organisations ensure compliance with section 62 of the Act. Employers must ensure their full-time employees are working a maximum of 38 hours per week.
She notes that any additional hours that an employee is requested or required to work must be ‘reasonable’ and attract overtime rates in accordance with any awards or enterprise agreements.
This also means exercising caution where there are salary arrangements and where employment contracts have a provision around working additional hours. What is ‘reasonable’ is dependent on a holistic assessment of each case, including of what is normal practice in each industry, the health and safety of employees and other relevant issues.
To register for future HR Breakfast Club forums, visit our monthly forum page and register to attend.If you have any questions or wish to discuss your circumstances with a lawyer, please contact the BAL Lawyers Employment Law & Investigations team on 02 6274 0999.