Reasonable additional hours of work

In 2008, a mining company implemented a roster change for its workers from a 40 hour working week on a three-week cycle which included day and afternoon shifts of eight hours, to a 44 hour working week on a two-week cycle of four day shifts, three of which were 12 hours and one at eight hours.

A particular worker then complained that the hours were unreasonable and that this change severely affected his personal and family commitments.  The worker had four children, of which two were university age and two were teenagers.  The worker took an active role in the sporting commitments of the two teenagers. 

The Federal Magistrates Court was subsequently required to determine whether the additional four hours were indeed ‘reasonable additional hours’ as required under section 226 of the Workplace Relations Act 1996 (‘Act’).

The Act outlined the following considerations as to what constitutes ‘reasonable additional hours’:

• any risk to the worker’s health and safety that might reasonably be expected to arise if the worker worked the additional hours;
  
  
• the worker’s personal circumstances (including family responsibilities);
  
  
• the operational requirements of the workplace, or enterprise, in relation to which the worker is required or requested to work the additional hours;
  
  
• any notice given to the worker of the requirement or request that the worker work the additional hours;
  
  
• any notice given by the worker of the worker’s intention to refuse to work the additional hours;
  
  
• whether any of the additional hours are on a public holiday;
  
  
• the worker’s hours of work over the four weeks ending immediately before the worker is required or requested to work the additional hours; and
  
  
• any other matter the Court considers relevant.

The Court in addition to these points, gave consideration to a number of other factors, including:

• the number of additional hours worked by the worker;
  
  
• the total number of hours worked on a particular shift;
  
  
• extent of night work;
  
  
• number of hours worked without a break;
  
  
• time off between shifts;
  
  
• remuneration received for additional hours;
  
  
• amount of annual leave;
  
  
• total working hours;
  
  
• length of shifts; and
  
  
• working patterns.

The Court found that the roster change, while constituting a significant change to the structure of the shifts, had few disadvantageous elements.  Further, some of the problems raised by the worker had in fact been ameliorated by the worker himself, such as amending his teenagers’ training schedules.  The Court thus found the roster changes to the hours of the worker to be reasonable.

Whilst this determination was under the previous Workplace Relations Act 1996, ‘reasonable additional hours’ remains pivotal in determining the Maximum Weekly Hours of an employee under the National Employment Standards of the Fair Work Act 2009.

This case illustrates that ‘reasonable additional hours’ must be considered on a case-by-case basis, with consideration to all points relative to the particular work involved.  In some instances, hours that may be found reasonable for one occupation may be found unreasonable in another.

Should you have any questions about ‘reasonable additional hours’, please contact Ian Curlewis on 9288 6756, email ian.curlewis@lavan.com.au or Michael Jensen on 9288 6944, email michael.jensen@lavan.com.au.