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:
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.