The Fair Work Act refers to a maximum of 38 hours per week, subject to the rule that an employer may require employees to work reasonable additional hours. But at what point do additional hours become unreasonable? And can an employee refuse to work?

While many Australians will occasionally work late or come in early to meet an important deadline or finalise a project, this question tends to come up when additional hours every week become the norm.

 

What does ‘reasonable additional hours’ really mean?

Reasonable additional hours may mean two hours for an employee, but seven or eight for an employer, so where do you draw the line?

When determining whether additional hours are reasonable, the following factors are to be considered:

  • any risk to employee health and safety from working the additional hours
  • an employee’s personal circumstances, including family responsibilities
  • the needs of the workplace or enterprise in which the employee is employed
  • whether the employee is entitled to receive overtime payments, penalty rates or other compensation for working additional hours
  • notice (if any) given by the employer of any request or requirement to work the additional hours
  • the notice (if any) given by an employee of his/her intention to refuse to work the additional hours, and
  • any other relevant matter.

A contract of employment may refer to nominal weekly or monthly hours of work, with the proviso that additional hours may be required to meet the business's needs. An employer should indicate to a prospective employee the expected number of hours required to be worked each week (as opposed to the nominal hours of work).

The additional hours’ provisions under the Fair Work Act contemplate the situation of hours worked in addition to what are the agreed or contracted weekly hours

 

Can an employee refuse to work additional hours?

An employee can refuse to work additional hours if the request is unreasonable.

This could be due to various factors, including health issues, prior private engagements, or simply because the potential overtime hours were not mentioned during the job interview or employment contract.

It is more of a grey area if, for example, the contract clearly outlines that overtime hours may occasionally be required to complete the job, or perhaps the employee enjoys a higher salary on the understanding that a 38-hour work week won’t always be manageable.

In many cases, it may come down to the employer and employee finding a healthy middle ground where the employer strives to avoid asking for ‘unreasonable’ overtime hours, and the employee strives to work only ‘reasonable’ overtime hours.