Are your employees working unreasonable additional hours?

When your employees are regularly working hours beyond their contracted hours, or beyond 38 hours per week, there is a risk they will claim those additional hours are ‘unreasonable’.

We have summarised the law surrounding this claim and lessons from recent cases.

What is the law?

The Fair Work Act 2009 (Cth) (FW Act) prohibits employers from requesting or requiring employees to work hours beyond 38 hours per week (or for part-time employees, more than their ordinary hours) (additional hours) where those hours would be ‘unreasonable’.

Are the additional hours ‘reasonable’?

The FW Act provides broad considerations under section 62 to determine if additional hours are reasonable. These are:

• any risk to employee health and safety from working the additional hours;
• the 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, or a level of remuneration that reflects an expectation of working additional hours;
• any notice given by the employer of any request or requirement to work the additional hours;
• any notice given by the employee of their intention to refuse to work the additional hours;
• the usual patterns of work in the industry, or the part of an industry in which the employee works;
• the nature of the employee’s role and the employee’s level of responsibility;
• whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64; and
• any other relevant matter.

The court will assign appropriate weight to any consideration it deems relevant to each case.

Lessons from recent cases

Ensure not to implicitly request additional hours through a high workload

In 2024, a product marketing manager claimed that he had been ‘required’ to work a 70-hour work week because the employer gave him more work than could be completed in a 38-hour work week. Due to this requirement, he attended international meetings outside of work hours.

While the court found that in this case the employee failed to prove he worked additional hours, it confirmed that additional hours can be implicitly requested through a high workload. In considering whether there was such a requirement, the court said it is necessary to consider factors such as the employee’s seniority, level of autonomy, contract terms, industrial instrument and workplace guidelines. The court noted that there will be no such requirement where an employee “chooses to work additional hours without the approval and/or knowledge of the employer for professional development or personal gain”.¹

Understand your industry’s standards

In 2024, a court ruled in favour of a creative retouching specialist employed at a production company who was regularly required to work 40 hours per week. The court held that in isolation, those hours were not unreasonable, but when done so regularly and frequently, the additional hours became unreasonable.

Representatives for the employer argued that a normal pattern of work in the advertising industry included regular additional hours, that the industry was ‘fast-paced’ and driven by client deadlines. The court rejected this evidence, agreeing with the evidence that 37.5 hours was standard industry practice.²

Position descriptions and expectation of roles

A court ruled in favour of an employer in Reynolds v Harrier Group Pty Ltd3³ after an employee claimed she was forced to work excessive hours due to the employer being undercapitalised and understaffed. The court accepted that the employee did, on occasion, work around 70 hours per week, but under her own volition. The court accepted evidence that the employee had significant autonomy in her role. This included the ability to hire additional staff to alleviate her workload and that she was not under an expectation direct or implied by the company or its board, as she had claimed, to work the unreasonable additional hours.

Lessons for employers

These cases and the approach taken by the courts highlight to employers the following:

• Additional hours can be worked by an employee when there are implied expectations or when that activity is present in a workplace’s culture.
• Individual circumstances such as family responsibilities, role autonomy and risks to health and safety of an employee should be considered when determining if additional hours are reasonable.
• Position descriptions and role expectations should be clear and well understood by employees, employers and the staff members responsible for directing additional hours.
• Business demands should be weighted accordingly against the considerations in section 62 of the FW Act before allocating additional hours to employees.

Contact us

If you are an employer seeking advice on reasonable additional hours, please contact a member of our Workplace Relations group.

_References

<sup>1. Dorsch v Head Oceania Pty Ltd [2024] FCA 162.
2. Chin v Visual Thing Australia Pty Ltd [2024] FedCFamC2G 896.
3. Reynolds v Harrier Group Pty Ltd [2023] FedCFamC2G 930.</sup>