Historically award employees working hours have been regulated by the relevant award.  Awards have specified ordinary hours of work and the applicable penalty rates if an employee works outside those hours.  Awards have also regulated how work can be scheduled or rostered.

Non-award employees have not been subjected to such stringent regulation.

The Working Hours Case (2002) 114 IR 390 was a test case brought by the ACTU to revise federal award provisions.  The AIRC [as it then was] acknowledged problems surrounding long hours but were not willing to do more than adopt a standard provision that permitted employees to refuse overtime where this would mean working “unreasonable” hours. 

The National Employment Standards (NES) set by the Fair Work Act 2009 (the Act), gives all employees, including managers and other professionals the right to object to working unreasonable hours. 

Section 20 of the Act sets ordinary hours for a full time employee who is award/agreement free as 38 per week where there has been no agreement reached between the employer and employee on the subject of ordinary hours of work.

Section 20(1) of the Act provides that where an award/agreement free employee has agreed with the employer on ordinary hours of work, the ordinary hours of work will be as agreed.  (This must be read subject to the provisions of section 62 of the Act and section 12 of the NES which sets the maximum hours of work for a full-time employee at 38 hours per week plus reasonable additional hours).  An employee may refuse to work additional hours if they are unreasonable (section 12(3) NES section 62(2) of the Act).

Section 12(4) of the NES (section 62(3) of the Act) sets out what is to be considered in determining whether additional hours or refusal to work additional hours are reasonable.  The considerations are:

  • Any risk to employee health and safety.
  • The employee’s personal circumstances.
  • The needs of the employer.
  • The employee’s entitlement to overtime payments, penalty rates or other compensation.
  • Whether the employee’s level of remuneration reflects an expectation of working additional hours.
  • The notice given by the employer to the employee of any request or requirement to work additional hours;
  • The notice given by an employee to an employer that they refuse to work additional hours.
  • The industry work patters.
  • The nature of the employee’s role and level of responsibility.
  • Whether the additional hours are in accordance with the averaging provision of any applicable award.
  • Any other relevant matter.

Section 62 of the Act provides that an employer must not require an employee to work more than 38 hours per week unless the additional hours are reasonable.  Award and agreement free employees may agree to average their ordinary hours over a six month period (section 64 of the Act), however hours must not be unreasonable in any given week.

Section 147 of the Act requires that all modern awards set out ordinary hours.  Unsurprisingly, modern awards provide for ordinary hours of work as 38 hours for a full time employee.

There is no requirement in the Act for ordinary hours to be set out in an enterprise agreement.  Given that ordinary hours is an entitlement under the NES, any enterprise agreement which does not contain an ordinary hours clause is unlikely to be given approval by the Fair Work Commission.

A part-time employee is generally someone who works less than 38 hours per week or whatever the “standard” is for that type of work.

The Federal Magistrates Court in the matter ofMacPherson v Coal & Allied Mining Services Pty Ltd (No.2) [2009] FMCA 881 held that an increase in a mining workers rostered hours from 40 to 44 per week was not unreasonable on the facts.

In this matter an Mr MacPherson, an electrical fitter working at Rio Tinto’s subsidiary Coal & Allied Mount Thorley/Warkworth open cut mine in the Hunter Valley, New South Wales, commenced proceedings claiming the change in his roster from a rotating three week Monday to Friday roster which averaged 40 hours per week to a 44 hour two week roster made up of four shifts (three 12 hour shifts and one of 8 hour shift) Monday to Friday was unreasonable additional hours.

Mr Macpherson argued that the additional hours were unreasonable as they disrupted his family life including;

  • his ability to take his sons to sports training;
  • his ability to coach his sons soccer team; and
  • his family meal time.

Magistrate Kenneth Raphael accepted the evidence presented on behalf of the employer that the new roster was accepted by the majority of workers and that a 44 hour roster was popular in the mining industry.

Magistrate Raphael noted there are a number of factors to be taken into account in determining whether additional hours are reasonable.  Those factors are:

  • The total number of hours worked on a particular shift.
  • Extent of any night work.
  • Number of hours worked without a break.
  • Time off in between shifts.
  • Risks to health and safety.
  • Personal circumstances of the employee(s).
  • Operational requirements of the employer.
  • Notice given by the employer to the employee(s) of the requirement to work additional hours.
  • Remuneration received for the additional hours.
  • Work patters permitted under an enterprise agreement [this would also apply to any applicable award].
  • Total working hours
  • Length of shifts.
  • Industry working patterns.
  • Applicable OH&S legislation and guidelines.

Magistrate Kenneth Raphael held [at 63]:

“… In my view the benefits to the employer of the new rosters outweighs the detriment to Mr McPherson which I believe is adequately compensated for by the work pattern allowance and by the extra rostered days off arising out of the new shifts.  I am satisfied that the extra rostered hours over the statutory 38 hours are, as they affect Mr McPherson, reasonable.”