Somewhere between responding to emails at the traffic lights, and dialling into a teleconference in the interval of a school Christmas pageant, most of us have found the time to complain about the ever increasing spread of our working hours. In August this year, the death of a German bank intern in London reportedly caused by his excessive working hours, highlighted the tendency towards long hours in professional circles. More recently in New York, a former personal assistant to Lady Gaga has caused a stir by pressing a suit for overtime in a case that sheds light on the bizarre life of a pop-star's aide. The former PA, Jennifer O'Neill, alleges that she spent the majority of her waking hours with Lady Gaga, often sleeping alongside her employer, and being woken to perform routine tasks such as changing a DVD.  The claim, and exposé of showbiz oddities continues…

Closer to home and reality, a recent study by the Australian Bureau of Statistics suggests that we aren't working longer hours. Although, we still work significant amounts of unpaid overtime. As at November 2012, over a third of Australian employees regularly worked additional hours, with more than a quarter of this group doing so unpaid (Working Time Arrangements, Australia, November 2012 ABS 6342.0 3 May 2013).

Thankfully, workplace deaths due to working hours are rare, although long hours are often associated with many other health and wellbeing issues. In a number of professions there is no financial disincentive (like overtime) to employers who ask their employees to put in additional hours. Employees who are not covered by awards or industrial instruments are often paid an annualised salary, which includes payment for all hours worked. Whilst this is permissible in most instances, employers must be mindful of the maximum working hours restrictions applicable to employees in Australia. Of course, even where employees are compensated directly for overtime, employers must still comply with maximum working hours laws.

The Golden Rule: 38 hours + "reasonable additional hours"

The Fair Work Act sets the maximum working hours for full time employees at 38 hours per week. Although, the Fair Work Act also allows employers to require "reasonable additional hours" of their employees.

When determining what constitutes "reasonable additional hours", the Fair Work Act lists 10 factors to be taken into account:

  1. any risk to health and safety;
  2. the employee's personal circumstances, including family responsibilities;
  3. the needs of the workplace;
  4. any overtime payments, penalty rates or other compensation for working additional hours;
  5. notice given by the employer;
  6. notice given by the employee of their refusal to work the additional hours; 
  7. the usual patterns of work in the relevant industry;
  8. the nature of the employee's role and level of responsibility;
  9. whether the additional hours are in accordance with averaging terms included in applicable modern awards or enterprise agreements that, or with an agreed averaging arrangement; and
  10. any other relevant matter. 

Where the additional hours are not "reasonable", an employee may refuse to work the additional hours

When reasonable becomes unreasonable: what Courts and Tribunals say

It can be a difficult exercise to determine how far a Court or Commission will stretch the concept of reasonable additional hours in a particular instance. Importantly, cases on reasonable working hours, such as Macpherson v Coal & Allied Mining Service (No 2) [2009] FMCA 88 and Premier Pet Pty Ltd trading as Bay Fish v Brown (No 2) [2013] FCA 167, show that the Courts will take into account each employee's personal circumstances when determining reasonableness, whilst balancing the interests and conduct of the employer in seeking to have additional hours worked.

In Macpherson, the employee mineworker argued against a rostered increase in hours from 40 to 44 per week because of his personal circumstances. He alleged that the longer hours disrupted his family responsibilities, such as meal times and coaching his son's sporting team.

Whilst the Magistrate accepted that the employee's personal circumstances were relevant, more weight was given to the needs of the workplace and the usual patterns of work in the mining industry. In particular, the Magistrate noted that the extra hours were consistent with industry practice, and that the new roster would result in extra time off for the employee. It was also significant that the extra hours were supported by a pay increase. Taking account of these factors, the Magistrate found that the benefit to the employer outweighed the detriment to the employee, and that the additional working hours were "reasonable".

Macpherson was later applied by the Administrative Appeals Tribunal in the case of Secretary, Department of Education, Employment and Workplace Relations v Jan Kliszka [2011] AATA 56. In this case, the employer increased the working hours of its employees by six hours of overtime on occasional Saturdays during the December busy period. The employee refused to do the time and was subsequently terminated on the grounds of misconduct because he "refused to work reasonable overtime". As a result of the misconduct, an officer of Centrelink (the Applicant) imposed an 8 week non-payment period on the employee's Newstart Allowance.  

In this case, the Tribunal applied Macpherson and found that the additional hours were "reasonable". In particular, the Tribunal placed emphasis on the following factors:

  • there was no associated health and safety risk;
  • the employee's evidence that the additional hours were unreasonable due to his personal circumstances (being that he played golf on Saturdays) was not persuasive;
  • the employer's operational requirements during December required the employee to work occasional Saturdays; and
  • clear notice of the additional hours was given to the employee.

The employer was not so lucky in the case of Premier. This case involved an appeal against a successful claim by the employee that his termination was adverse action in contravention of the Fair Work Act, because he had chosen to exercise a workplace right in refusing to work unreasonable overtime.

The employee was employed as a full-time fish keeper with Premier in March 2011.  In July, Premier introduced mandatory rostering arrangements which required all employees to conduct routine maintenance work  on non-trading days (weekends and public holidays).  The employee refused to participate in the mandatory overtime roster and was dismissed on 15 July 2011.

In ruling that the employee was entitled to refuse to work the additional hours, the Magistrate considered the 10 factors in the Fair Work Act, and gave particular attention to the following:

  • the employee's personal circumstances, being that he was bankrupt, assisted his live-in mother and worked for an internet retail business selling swords when not at work for Premier;
  • the lack of evidence presented by Premier as to the needs of the particular workforce, the usual patterns in the industry and the employee's level of responsibility;
  • the lack of consultation with employees about changes to rosters; 
  • that the employee did not refuse to work overtime or on weekends, he simply suggested that there ought to be some time off in lieu or other recognition of the time he worked on the weekend.

The Federal Court found no reason to overturn the Magistrates decision, and the employee was reinstated to his role of fish keeper.

Being mindful of not just how long, but "when"

These cases concentrate more on the question of "when", as opposed to how long. Employees tend to take issue more readily where their personal commitments are impacted, as apposed to the sheer number of hours they clock in. It is true that, whilst working on your golf handicap doesn't make the cut, personal circumstances may be a legitimate cause to refuse additional hours. And in considering whether the number of additional hours worked is reasonable, it is clear that the Courts will consider the health and safety of individual employees. 

In any event, and while smartphones continue to increase their IQ with every new release, complaints about working hours are likely to continue for as long as we rely on technology to empower flexible work arrangements. Whilst remote access is undoubtedly convenient for many industries, employers should still consider the impact of such access on their employees' "reasonable additional hours". When considering employees' working hours, employers need to be mindful of personal circumstances, the impact of working hours on health and safety, and also the long term impact of unsuitable working hours on workforce productivity.  We also strongly recommend that you change your own DVDs and avoid sleepovers with your subordinates….