Do reasonable additional hours apply to part-timers?

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Do reasonable additional hours apply to part-timers?

Can a part-time employee refuse to work additional hours? Paul Munro explains.

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Can a part-time employee refuse to work additional hours?

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Q Our company employs several part-time employees whose ordinary weekly hours are 32 hours per week. Their ordinary hours are worked 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 was asked to work an extra six hours, she was 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 for a part-time employee who normally works 15 hours a week to have to work 30 hours a week. The Fair Work Act also provides that an employee may refuse to additional hours beyond his/her ordinary weekly hours if they are unreasonable. 
 
The Fair Work Act (s62(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)
  • an employee’s personal circumstances, including family responsibilities (potential issue)
  • the needs of the workplace in which an employee is employed (operational reasons requiring extra hours can be explained at the interview)
  • whether an 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 an employer of any request or requirement to work additional hours (not applicable in this case)
  • any notice given by an employee of his/her intention to refuse to work the additional hours (not applicable in this case)
  • the usual patterns of work in an industry, or part of an 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 to be 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 an offer of employment accepted by an employee will also be relevant, though not determinative.

Adverse action


It should be noted that an employee dismissed in this circumstance could claim the employment was terminated because he/she exercised their workplace right to refuse to work unreasonable additional hours. However, 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 means hours worked in excess of the employee’s contracted ordinary hours per week.
 

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