Can I Request My Employee to Work Additional Hours?

It is common in the building and construction industry that employees are required to work additional hours. The Fair Work Act (the FW Act) provides that an employer must not request or require a full-time employee to work more than 38 hours in a week unless the additional hours are reasonable. The FW Act doesn’t prohibit an employee from working additional hours. An employee can voluntarily agree to work additional hours if those hours are reasonable. There is no clear answer on what are reasonable additional hours. It is the employer’s responsibility to prove that additional hours are reasonable.

What the FW Act requires an employer to consider?

Section 62 of the FW Act requires employers to consider a list of factors when determining whether additional working hours are reasonable. These factors 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 business in which the employee is employed,
• 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,
• any notice given by the employer of any request or requirement to work the additional hours,
• any notice given by the employee of his or her 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, and
• the nature of the employee’s role, and the employee’s level of responsibility.

Further, employers should comply with the requirement in any applicable award, enterprise agreement, and workplace policies if they request their employees to work additional hours. If the requirement of an employee to work additional hours is found to be unreasonable, the employer could be found in breach of the FW Act and be liable for civil penalties.

If you have any questions in relation to industrial relations, please contact our Workplace Relations and Legal Team on 02 6175 5900.