Employee's additional hours of work determined unreasonable

Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512

Earlier this year, the Federal Court of Australia handed down a decision examining what constitutes "reasonable additional hours". The decision also reminds employers to comply with their obligations to provide relevant information to employees including:

• the Fair Work Information Statement (FWIS)
• copies of the applicable award and national employment standards (NES), and
• posting a roster on the work premises

What are employees' maximum weekly hours under the Fair Work Act?

Section 62 of the Fair Work Act 2009 (Cth) (FW Act) provides that an employer must not request or require an employee to work more than:

• 38 hours if they are a full-time employee, or
• the employee's ordinary hours of work (which are generally agreed to in the employment agreement) and less than 38 hours if they are a part-time employee

plus reasonable additional hours. In determining what amounts to "reasonable additional hours", section 62 lists a number of factors which must be taken into account.

Background facts

The applicant, Samuel Boateng, is a Ghanaian immigrant. Within three weeks of arriving in Australia, he was offered employment as a knife hand with Dick Stone Pty Ltd, Sydney's largest meat wholesaler. At the time, he was provided with a written contract which required him to work 50 "ordinary work hours" per week from 2.00am to 11.30am on weekdays and from 2.00am to 7.00am on Saturdays, plus reasonable additional hours as requested. Mr Boateng was covered by the Meat Industry Award 2010 (the Award) but the contract did not include the Award or rate of pay.

During his employment, Mr Boateng routinely worked 50-hour weeks and, from time to time, worked additional hours for which he was paid overtime rates calculated on a base hourly rate derived by dividing the weekly wage by 50.

Summary of issues

The Federal Court considered the following key issues.

"Unreasonable" working hours

Were the hours Mr Boateng was required or requested to work in excess of 38 hours per week “unreasonable” within the meaning of section 62 of the FW Act? In short, the Court determined that the additional hours were unreasonable.

Provision of information

• Did Dick Stone contravene section 125 of the FW Act by failing to give Mr Boateng a copy of the FWIS before, or as soon as practicable after, he commenced employment?
• Did Dick Stone fail to make the Award and the NES available to Mr Boateng, as required by clause 5 of the Award?
• Did Dick Stone fail to post rosters on the work premises, in breach of clause 34.1 of the Award?

The Court determined Dick Stone was in breach of its provision of information obligations.

Classification

The Court also considered Mr Boateng's classification under the Award and whether Dick Stone had failed to pay overtime rates.

What are reasonable additional hours?

A full-time employee working in excess of 38 hours is prima facie unreasonable unless there is a valid reason for such a requirement or request to be made. The onus lies with the employer to determine what is "reasonable", assessed on a case-by-case basis and taking into account the employee's personal circumstances.

Mr Boateng deposed (amongst other things) that:

• he was given no choice about his ordinary hours of work and would not have chosen to work in that way if given a choice
• he had no knowledge of Australian law and rights when he joined Dick Stone because he had only been in Australia for three weeks
• he found his working hours and early start times "very draining and tiring"

Dick Stone submitted that it was not possible to say that 50 hours of work per week were a requirement or a "unilateral" request because Mr Boateng had entered freely into the employment agreement. The Court determined that section 62 of the FW Act is part of the NES and therefore the parties cannot contract out of it.

Matters for consideration

Section 62(3) provides a non-exclusive list of matters which must be considered in determining whether additional hours are reasonable. These are, in summary:

• risks to the employee's health and safety
• the employee's personal circumstances
• the needs of the employer's workplace or enterprise
• whether the employee is entitled to receive overtime or penalty rates for the additional hours
• whether the employer has provided notice of the additional hours to the employee
• whether the employee has provided notice to the employer of their intent to refuse to work additional hours
• the usual patterns of work in the industry
• the nature of the employee's role and their level of responsibility
• whether additional hours are in accordance with averaging terms under the NES or any applicable award or enterprise agreement
• any other relevant matter

The Court considered such matters as follows.

Risks to the employee's health and safety

The Court considered that fatigue can affect alertness and concentration, contribute to a number of adverse health issues in the long term and increase the risk of accidents in the workplace ─ particularly where Mr Boateng's role involved sharp knives and the lifting of heavy weights. Dick Stone submitted that, to date, Mr Boateng had suffered few injuries and hadn't required treatment, but the Court determined that this did not mean there was no risk, only that a serious injury had not yet materialised.

Employee's personal circumstances

The Court addressed Mr Boateng's personal circumstances, specifically that he was a recent immigrant and therefore unaware of Australian law and his rights.

Employer's business needs

Dick Stone submitted that if new employees were hired and existing staff worked 38 hours per week, Dick Stone would save money because there would be less overtime paid. However, Dick Stone elected not to take this approach because it feared it would impact retention. On that basis, the Court accepted that the 50-hour week aligned with business needs, but that this would not necessarily mean that Mr Boateng's additional hours were reasonable.

Entitlement to receive overtime

Mr Boateng was entitled to but not paid overtime for additional hours.

Notice of additional hours

Mr Boateng was aware that he would work additional hours because this was set out in his letter of employment.

Refusal of working additional hours

At no time did Mr Boateng notify Dick Stone of, or raise with the union, his intention to refuse additional hours of work. However, the Court also acknowledged that this was unsurprising because he was not provided with a FWIS, and because he was unaware of his Award entitlements until he made contact with the union.

Industry work patterns

The ordinary span of hours in the Award is from 4.00am, so a 2.00am start time was unusual.

Nature of employee's role

Mr Boateng did not have any managerial or supervisory duties, therefore there was nothing in the nature of his role which required him to work more than 38 hours per week.

Accordance with averaging terms under NES

The hours of work were not in accordance with the averaging terms in the Award.

Additional matters

The Court also considered the following matters were relevant as to whether the additional hours in excess of 38 hours were "reasonable":

• The hours worked included starting at 2.00am and such hours were "unsociable"
• The number of additional hours required represented an additional 31.5% on top of a normal working week
• 12 additional hours were worked every week
• The hours of work deprived Mr Boateng of a weekend because they exceeded the ordinary 5-day working week
• Whether some of Dick Stone's workers preferred a 50-hour week did not make the hours objectively reasonable

On balance, the Court determined that that it was unreasonable for Dick Stone to require Mr Boateng to work 50 hours per week. Twelve hours a week every week over and above the 38 hours stipulated by the Award and the NES was not reasonable.

What information must an employer provide to employees?

Giving new employees the FWIS

Section 125 of the FW Act provides that employers must provide the FWIS before, or as soon as practicable after, the employee starts employment. The Court accepted Mr Boateng's evidence that he first saw a FWIS in late 2018 or early 2019 after the union became involved. On that basis, Dick Stone had breached section 125.

The Court also considered that even if a FWIS was made available on the counter in the reception area, on a noticeboard in the staff lunchroom or outside the dispatch office (which was not accepted on the evidence), this was insufficient to meet the statutory requirement because the FW Act provides that the employer must "give" the FWIS to the employee. In other words, it is insufficient for the employer to make the FWIS available; it must deliver or hand over the FWIS.

Making the Award and the NES available to employees

Clause 5 of the Award requires employers to make a copy of the Award and the NES available to all employees, either on a noticeboard or through electronic means. The Court accepted the evidence that the Award and NES were not made available on a notice board. With respect to electronic access, Mr Boateng was never informed that they were available on a computer to which he had access. The employer's obligation is not discharged by the fact that the Award and NES can be found on the internet unless the employee is told that they can be accessed there and how to access them. Dick Stone had therefore contravened clause 5 of the Award.

Posting a roster

The Court also determined that Dick Stone was in breach of clause 34.2 of the Award because it did not post a roster in the premises showing the start and finish times for ordinary hours for employees. It was insufficient to make rosters available via an online portal because the clause requires the roster to be available "at the premises".

Key takeaways

In summary, employers:

• should be cautious about requesting or requiring employees to work in excess of 38 hours per week. If they elect to do so, employers must examine whether the additional hours are reasonable by reference (without limitation) to the matters listed in section 62(3)
• should not ignore their obligations with respect to providing mandatory information to employees. In this case, a failure to provide this information was relevant to whether the additional hours required were reasonable.

For more information on how the topics raised in this summary may apply to your organisation, please contact a member of our Workplace Relations & Safety team.

Photo by Mitchell Luo on Unsplash.