The NES provides the maximum hours for an employee must not exceed 38 hours in a week. The 38 hours would be ‘ordinary hours’ for a full time employee. An employer may then require an employee to work reasonable additional hours in the week (generally attracting overtime penalty rates).
An employer must consider the following factors when determining whether additional hours are reasonable:-
· Would working additional hours pose any risk to employee health and safety?
· What are the employee’s personal circumstances, including family responsibilities?
· What are the operational requirements of the workplace or enterprise?
· Is the employee entitled to receive overtime payments, penalty rates, or other compensation for working additional hours?
· Was notice afforded to the employee by the employer when requested to work additional hours?
· If the employee’s intention is to refuse the additional hours, was notice afforded by the employee?
· Are there any other matters to be considered?
The hours of work an employee works in a week will include any authorised hours of leave, or absence, regardless of if it is paid or unpaid.
Averaging of Hours
The NES allows an employer and an employee who is not covered by an award or agreement to agree to average the employee’s hours over a maximum period of 26 weeks. Modern awards and Agreements may also provide terms regarding averaging of hours in addition to other terms relating to ordinary hours of work.
The following however will apply for both award/agreement free and Award and Agreement covered employees where the average weekly hours over the period must not exceed:
· 38 hours for a full time employee; or
· For an employee who is not full time, the lesser of the 38 hours and the employee’s ordinary hours of work in a week
An averaging arrangement in a new award would be relevant to be considered when determining whether additional hours in excess of 38 per week were reasonable or unreasonable.
Part time Employees
The principle of reasonable additional hours also extends to that of a part time employee. For example, a part time employee who works 20 hours usually per week and is required to work 35 hours may be considered an unreasonable amount of additional hours.
Modern Awards usually provide detail on the following matters relating to hours of work:-
· Providing the ordinary days of the week on which ordinary hours may be worked;
· Providing definitions of day, afternoon and night shift for shift workers, including permanent night shift and, in some instances, early morning shift and broken shifts. Further providing definition of what constitutes ‘continuous’ and ‘non-continuous’ shift work and whether 12 hours shifts may be worked;
· Providing the span of hours for day workers usually 6am to 6pm in which ordinary hours may be worked
· Providing averaging of ordinary hours options – allowing a rostered day off (RDO) including details of substitution and accumulation of RDOs, and also arranging ordinary hours to exceed 8 hours in a day
· Providing time off in lieu (TOIL) of overtime worked (in most cases an hour for hour basis)
· Providing detail of make up time where an employee may be allowed to take time off ordinary time hours and work those hours at another time during the spread of ordinary hours.
Change of hours
Where an award or agreement requires an employer to fix the start and finish times for an employee or group of employees, these times will only be changed by agreement. All hours worked before an employee’s start time or after an employee’s finish time is regarded as overtime and will generally attract penalty payments.
Employers should always attempt to be flexible when implementing any changes in employees hours.
Unless an award or agreement provides otherwise, a ‘meal break’ usually means an unpaid break, whilst a ‘crib break’ usually means a paid break. Any unpaid break does not form part of an employees normal hours whereas a paid break is.
An employee required to perform work during an unpaid break is usually entitled to payment at the appropriate overtime penalty rate for all time worked until the employee takes their required break.