Part-time workers might wonder if they can refuse extra hours that do not exceed 38 hours a week. Learn how the Fair Work Act protects part-time employees from unreasonable additional hours beyond their contracted hours.

Q. Our company employs many part-time employees whose ordinary weekly hours are 32 hours per week. Their ordinary hours are worked 8 hours per day, Monday to Thursday inclusive.

An employee was asked to work 38 hours in a particular week because a full-time employee was absent on personal/carer’s leave. The employee thought the request was unreasonable. It is our understanding that the reasonable additional hours provisions under the National Employment Standards relate to hours worked more than 38 hours in a week.

While the employee is working 8 hours beyond their ordinary weekly hours, they are not required to work beyond 38 hours. Does a part-time employee have the right under the National Employment Standards to refuse to work additional hours that do not exceed 38 hours in a particular week? 

A. Under the Fair Work Act (s.62(2)), a part-time employee may refuse to work additional hours beyond their ordinary weekly hours if they are unreasonable. Unreasonable additional hours may include total hours of less than 38 for a part-time employee.

For example, a part-time employee who usually works relatively few hours per week, such as 15 hours, working a significant number of additional hours (say 30 hours) may be considered unreasonable for that part-time employee.  

The Fair Work Act also provides that an employee may refuse to work additional hours beyond their ordinary weekly hours if those hours are unreasonable.  

The Fair Work Act (s.62(3)) contains a non-exhaustive list of factors that must be considered in determining whether additional hours are reasonable or unreasonable. These are: 

  • any risk to employee health or safety from working the additional hours (not likely in this case) 

  • the employee’s personal circumstances, including family responsibilities (potential issue) 

  • the needs of the workplace and the enterprise in which the employee is employed (operational reasons requiring extra hours can be explained at the interview) 

  • whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or other remuneration that reflects the expectation of, working additional hours (may be recognised in the salary offered to a prospective employee) 

  • any notice given by the employer of any request or requirement to work the additional hours (not applicable in this case) 

  • any notice given by the employee of his or her intention to refuse to work the additional hours (not applicable in this case) 

  • the usual patterns of work in the industry, or part of the industry, in which the employee works (possible reason explained at the interview) 

  • the nature of the employee’s role and the employee’s level of responsibility (a management role involves greater responsibility) 

  • whether the additional hours are in accordance with an averaging arrangement (not applicable) 

  • any other relevant matter. 

The relevance and weight of each of these factors will vary according to the particular circumstances. In some cases, a single factor will be of great importance and outweigh all others. The fact that a requirement to work additional hours is set out in the offer of employment accepted by an employee will also be relevant, though not determinative. 

 

Adverse action 

It should be noted that an employee dismissed in this situation could claim that their employment was terminated because they exercised their workplace right to refuse to work unreasonable additional hours. However, the employer could argue that the employee was dismissed because they refused a proper direction to work reasonable additional hours. In such cases, the burden of proof would fall on the employer to show that the extra hours were not unreasonable. See Premier Pet Pty Ltd t/a Bay Fish v Brown (No.2) [2013] FCA 167. 

 

Bottom line 

Reasonable additional hours do not mean hours worked in addition to 38 per week, but hours worked in excess of the employee’s contracted ordinary hours per week.