Can a part-timer refuse to work extra hours?

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Can a part-timer refuse to work extra hours?

Can a part-timer refuse to work additional hours if an employer's request does not exceed 38 hours per week?

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Can a part-timer refuse to work additional hours if an employer's request does not exceed 38 hours per week?

This question was recently sent to our Ask an Expert service.
 
Q Our company employs several part-time employees whose ordinary hours are 32 hours per week. They work eight hours per day, Monday to Thursday inclusive. An employee was asked to work 38 hours in a particular week because a full-time employee was absent on personal/carer’s leave. The employee thought the request was unreasonable.

It is our understanding the reasonable additional hours provisions under the National Employment Standards relate to hours worked in excess of 38 hours in a week. While the employee is working eight hours in excess of their ordinary weekly hours she is not required to work beyond 38 hours.

Does a part-time employee have the right under the National Employment Standards to refuse to work additional hours which do not exceed 38 hours in a particular week?
 
A Under the Fair Work Act (s62(2)), a part-time employee may refuse to work additional hours beyond their ordinary weekly hours if they are unreasonable. Unreasonable additional hours may include total hours less than 38 in the case of a part-time employee.

For example, it may be considered unreasonable to ask a part-time employee who normally works only 15 hours a week to work, say, 30 hours.  

The Fair Work Act also provides that an employee may refuse to do additional hours beyond their ordinary weekly hours if they are unreasonable.
 
The Fair Work Act (s.62(3)) contains a non-exhaustive list of factors that must be taken into account in determining whether additional hours are reasonable or unreasonable.

These are:

  • any risk to employee health or safety from working the additional hours (not likely in this case)
  • the employee’s personal circumstances, including family responsibilities (potential issue)
  • the needs of the workplace/enterprise in which the employee is employed (operational reasons requiring extra hours can be explained at the interview)
  • whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or other remuneration that reflects the expectation of, working additional hours (may be recognised in salary offered to prospective employee)
  • any notice given by the employer of any request or requirement to work the additional hours (not applicable in this case)
  • any notice given by the employee of his/her intention to refuse to work the additional hours (not applicable in this case)
  • the usual patterns of work in the industry, or part of the industry, in which the employee works (possible reason explained at the interview)
  • the nature of the employee’s role and the employee’s level of responsibility (management role involves greater responsibility)
  • whether the additional hours are in accordance with an averaging arrangement (not applicable)
  • any other relevant matter.
The relevance of each of these factors and the weight given to each of them will vary according to the particular circumstances. In some cases, a single factor will be of great importance and outweigh all others. The fact that a requirement to work additional hours is set out in the offer of employment accepted by an employee will also be relevant, though not determinative. 

Adverse action

 
An employee dismissed in this circumstance could claim the employment was terminated because he/she exercised a workplace right to refuse to work unreasonable additional hours, although the employer could argue the employee was terminated because he/she refused a proper direction from the employer to work reasonable additional hours.

In such a matter, the onus of proof would require the employer to demonstrate the additional hours were not unreasonable. See Premier Pet Pty Ltd t/a Bay Fish v Brown (No.2) [2013] FCA 167.

The bottom line: Reasonable additional hours does not mean hours worked in addition to 38 per week. It relates to hours worked in excess of an employee’s contracted ordinary hours per week.
 

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