The 38 hour work week – What are reasonable additional hours?

A full-time employee working in Australia can expect to be contracted to work 38 hours per week but in reality many professions and industries require employees to work more than this. 

It is commonplace for employment contracts to state that the employer may require the employee to work ‘reasonable additional hours’ in addition to their 38 hours per week. Usually, the wording in the contract mirrors the statutory provisions in the Fair Work Act 2009 (Cth) (Fair Work Act). 

In reality, what will be deemed as reasonable additional hours will be determined on a case by case basis by reference to the employee’s circumstances and the employer’s business.

The Legislative Framework

Section 62 of the Fair Work Act provides for the maximum weekly hours that an employer can request or require an employee to work in any given week unless the additional hours are considered to be reasonable. These hours are:

• 38 hours for full-time employees; or 
• for employees who are not full-time the lesser of 
  1. 38 hours; or 
  2. the employee’s ordinary hours of work. 

The Fair Work Act states that an employee may refuse to work any unreasonable additional hours in excess of the hours identified above.

Section 62(3) provides a list of considerations to be taken into account when determining whether additional hours are ‘reasonable’ or ‘unreasonable’. These 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; and
10. any other relevant matter.

​Recent Federal Court Decision on reasonable additional hours

In the matter of Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (Dick Stone), the Federal Court of Australia examined reasonable additional hours in the context of the meat industry, ultimately finding that requiring production floor employees to work a 50 hour week across 6 days was unreasonable.

In this particular case a Ghanaian immigrant, Mr Boateng was employed under a written employment contract to work 50 “ordinary hours” a week from 2.00am to 11.30am on weekdays, and from 2:00am to 7:00am on Saturdays, plus reasonable additional hours as requested. 

Dick Stone had argued that although the worker was not paid overtime for these hours, he was paid a “blended rate” which incorporated overtime into the base hourly rate under the Meat Industry Award 2020. 

In the judgement Katzmann J methodically addresses each of the considerations found in section 62(3) as identified above. Her Honour particularly found the following aspects of the evidence to be persuasive:

• The 12 additional hours posed a health and safety risk to the employee regardless of any accidents or injuries occurring. Mr Boateng described the work as “very tiring” with the Court finding the risk of fatigue posed a health and safety risk as the employee was operating machinery and handling knives as part of his duties.  
• The personal circumstances of Mr Boateng included that he was a recent immigrant to Australia becoming employed at Dick Stone within 3 weeks of his arrival and that it was highly unlikely that he had any understanding of Australian workplace law.
• Although Mr Boateng was paid a “blended rate” he was not paid any overtime for the additional hours that he was required to work. 
• The role possessed no qualities such as managerial duties that suggested it should require more than 38 hours per week. 
• The additional hours were at an ‘unsociable’ time of the day and were spread across 6 days a week prohibiting the employee from having a weekend. 

On balance the Court found that it was unreasonable of Dick Stone to require or request Mr Boateng to work 12 hours a week every week over and above the 38 hours stipulated by the Meat Industry Award 2020 and the Fair Work Act.

For this breach of the National Employment Standards Dick Stone was fined $30,000. 

Ongoing test cases

Since the Dick Stone decision last year, a series of additional test cases have been launched in the Federal Court to further test what constitutes ‘reasonable additional hours’ in various industries.  

Rugg v Commonwealth of Australia as represented by the Department of Finance

This high profile matter which is currently before the courts involves a dispute between ‘Teal’ MP Dr Monique Ryan and her former Chief of Staff, Ms Sally Rugg. 

Ms Rugg has alleged that she was dismissed from her employment for refusing to work ‘unreasonable additional hours’. Ms Rugg has deposed that her role involved working approximately 70 to 80 hours per week and included travel to and from Canberra and accompanying Dr Ryan to media appearances. Although Dr Ryan agreed that the hours were long during ‘sitting weeks’ she deposes that the hours were not as long as Ms Rugg alleges and were actually relatively flexible outside of ‘sitting weeks’. 

In recent weeks, Ms Rugg has failed to persuade the court to grant an interim injunction to maintain her position of Chief of Staff whilst the matter progresses to a final hearing. 

Despite losing their initial Court challenge, Ms Rugg’s lawyers have described the matter as still in an early stage with the Court yet to hear evidence and decide on whether a 70-hour work week, almost twice the ordinary working week of 38 hours, can lawfully fall within ‘reasonable additional hours’ permitted in the Fair Work Act. 

They have further indicated that “the issues to be considered at trial could have far-reaching ramifications for all Australians who work in industries where long hours are expected and normalised.”

Financial Sector Union of Australia V National Australia Bank Limited & Anor (NSD201/2023)  In March 2023 the Financial Sector Union (FSU) launched a test case on behalf of four NAB managers who had been required to work far in excess of 38 hours per week. 

In particular these employees were frequently required to work between 10 and 16 hours per day up to 7 days a week in order to meet their excessive workloads. One example the union provides is of a manager required to work 9am until midnight each day and then expected to arrive on time to work the following day. 

The Union has stated that “[they] hope the case will set a benchmark for what constitutes ‘reasonable additional hours’ and prevent the banks from being allowed to exploit staff by demanding they work excessive unpaid hours”. 

This set of proceedings follow a report produced by the Union in 2021 which found that it was almost universal for employees of level 3 or higher under the relevant enterprise agreement, to work in excess of 38 hours per week where they do not have any entitlement to overtime. 

Certain professions and industries such as finance, accounting and law are all known for their long work hours and these two cases may provide guidance in the near future as to whether these additional hours can be considered ‘reasonable’. 

Key Considerations

Although the Fair Work Act provides that an employee may be required to work reasonable additional hours this will be determined by the facts and circumstances of each case. If you are an employer who is currently requiring their employees to work in excess of 38 hours per week it is prudent to consider the factors listed in section 62(3) (and repeated above) and reevaluate whether it is reasonable in all of the circumstances.

If you require any further guidance on what constitutes reasonable additional hours, please contact us.