The concept of reasonable additional hours is a loaded one when it comes to employment compliance, particularly for salary modelling, but a recent case has highlighted that it also represents a real health risk that must be actively managed.  This landmark decision is likely to have implications that reach into many industries, including fuel transport, which typically attracts high levels of overtime.

The Federal Court has found that requiring or requesting an employee work 50 hour work weeks could not be considered to be reasonable.

This finding was made despite the Justice acknowledging the nature of such arrangements as common enough to be considered an industry standard and noting that at least on the face of it that would be all that is required to determine reasonableness.

The complicating factors that lead to the determination that 50 hours was, after all consideration, unreasonable were primarily; the Award construction of ordinary hours, and the “common knowledge” that fatigue (both physical and mental) can increase the risk of accidents at the workplace.

The Judge argued that the Award was clear that the intention was for employees not to work more than 38 hours in a week or 10 hours in a day.  “clause 31.2(a) [of the award] provides that the ordinary hours of work are not to exceed 38 per week or an average of 38 per week not exceeding 152 hours in 28 days. When clause 31.2(c) is read in context, it is clear that the award does not regard it as reasonable to require an employee to work more than four 10-hour days or shifts a week”.

Ultimately the finding was “On balance… I am persuaded that it was unreasonable of Dick Stone to require or request [the worker] to work 12 hours a week every week over and above the 38 stipulated by the award and the Act”.

Learnings for all businesses

“This case has caused a significant stir in industries that have standardised rostered overtime” explains ACAPMAs Elisha Radwanowski.

“For the fuel industry, where ordinary hours are restricted to 35 in a week, the implications of this finding are likely to be wide ranging” continues Elisha.

“While there were complicating factors in this case it was not a case of underpayment.  Rather the lack of communication in the engagement documents about the timing of ordinary hours and when overtime rates would apply gave the impression of a lack of choice for the employee in undertaking the overtime hours.  These complicating factors weighed against the employer, but ultimately did not change the fundamental core of the finding, that even had those elements been corrected from commencement, the requirement or request of working 50h weeks was deemed to be unreasonable based on the Award and safety implications” noted Elisha.

“This is a case whose full impact will continue to unfold and ACAPMA will keep members updated as further developments come to light” concluded Elisha.

Here to Help

Safety Highlights are things to consider, implement and watch out for in your business.  They are provided as general information for you to consider and do not constitute advice.  You should seek further advice on your situation by contacting your legal advisor.  ACAPMA members can access resources and receive advice, guidance and support from the ACAPMA employment professionals via employment@acapma.com.au  , it is free for members.  ACAPMA Membership delivers this and more benefits, see; https://acapma.com.au/membership/   for more information.

Elisha Radwanowski BCom(HRM&IR)
ACAPMA

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