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When are additional hours of work considered unreasonable?

Shawn Skyring ||

In the Federal Court decision of Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512, the Court found that in contravention of the National Employment Standards and the Fair Work Act, an employer required its employee to work unreasonable additional hours.

The facts of Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512

In 2016, Mr Samuel Boateng (‘Mr Boateng’), a migrant worker from Ghana, secured employment as a meatworker with Dick Stone Pty Ltd (‘Dick Stone’). Prior to commencing his employment, Mr Boateng was provided with documents including an ‘Employee Commencement Pack’ and ‘Employment Form’, which outlined his ordinary hours as 50 hours per week. These documents failed to outline his pay rate, overtime rates, and the relevant Meat Industry Award 2010.

Dick Stone contended that although Mr Boateng did not receive overtime payments for the additional hours worked, he was paid a blended rate which incorporated overtime.

Mr Boateng was contracted to work from 2:00am to 11:30am on Monday to Friday, and from 2:00am to 7:00am on Saturdays. He expressed that these work hours were tiring and draining, and that if he were given a choice, he would not have chosen to work those hours.

The Australasian Meat Industry Employees Union brought an application to the Court, alleging that Dick Stone failed to pay overtime for hours worked in excess of 38 hours per week, and that it was unreasonable to request Mr Boateng to work 50 ordinary hours per week.

Findings

Section 62(1)(a) of the Fair Work Act 2009 (Cth) (‘Fair Work Act’) provides that an employer must not request, or require, a full-time worker to work more than 38 hours a week unless additional hours are reasonable.

The key factors that courts consider when determining whether additional hours are reasonable are outlined in section 62(3) of the Fair Work Act. These factors include:

  1. any risk to employee health and safety from working the additional hours;
  2. the employee’s personal circumstances, including family responsibilities;
  3. the needs of the workplace or enterprise in which the employee is employed;
  4. whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours;
  5. any notice given by the employer of any request or requirement to work the additional hours;
  6. any notice given by the employee of his or her intention to refuse to work the additional hours;
  7. the usual patterns of work in the industry, or the part of an industry, in which the employee works;
  8. the nature of the employee’s role, and the employee’s level of responsibility;
  9. 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;
  10. any other relevant matter.

In reference to these factors, Justice Katzmann held that it was unreasonable for Dick Stone to require Mr Boateng to work an additional 12 hours per week.

Justice Katzmann found that although Mr Boateng agreed to the terms of his contract, he was not well informed of the contract, or given a choice. This was heightened by Mr Boateng’s personal circumstances. He had only been in Australia for three weeks before commencing his employment with Dick Stone (section 62(3)(b) of the Fair Work Act). He had no knowledge of his award entitlements and rights, and Dick Stone failed to provide him with a Fair Work Information statement. Mr Boateng also had familial responsibilities, which were impacted by the additional work hours (section 62(3)(b) of the Fair Work Act). Justice Katzmann also highlighted that the additional hours presented a risk to Mr Boateng’s health and safety as his work required the use of dangerous equipment including knives (section 62(3)(a) of the Fair Work Act). In addition, the Meat Industry Award 2010 states that the usual pattern of work for an individual in Mr Boateng’s role was commencing at 4:00am, as opposed to 2:00am (section 62(3)(g) of the Fair Work Act).

Key takeaways

This case highlights that despite an employee agreeing to work additional hours, additional hours may be considered unreasonable in the circumstances. Employers must exercise caution when imposing additional work hours by providing an employee with documentation such as the applicable Award and the Fair Work Information statement. In addition, employers must continually assess the needs of their business against the additional hours of employers, and consider if an employee working additional hours is needed.

If you have any questions regarding the above, please do not hesitate to contact a member of Coleman Greig’s Employment Law Team, who would be more than happy to assist you today.

By Shawn Skyring, assisted by Elisabeth Krstanovski.

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