In an important decision the Federal Circuit and Family Court of Australia has found that an employer’s requirement for a 40-hour work week for a relatively junior employee was unreasonable.
The Facts
The employer company specialised in photographic retouching and also offered finished art, video editing, and photography.
The employee worked for the employer as a retouching specialist and her employment contract stated:
“Standard hours of work are 40 hours per week, Monday to Friday, 9.00 am sharp to 6.00 pm, with 1 hour lunch break. Additional overtime may be required to meet tight deadlines”.
“The Company will pay the Employee a salary package of $55,000 per annum before super. This package is based on a full-time permanent position. Overtime will be accrued and calculated at an hourly rate”.
The Fair Work Act 2009 provides that an employer must not request or require a full-time employee to work more than 38 hours per week unless the additional hours are reasonable.
The Act also lists a range of factors to take into account in determining if additional hours are reasonable, including any risk to health and safety, the employee’s personal circumstances, the needs of the workplace, whether the employee receives overtime or penalty pay, and the employee’s level of responsibility.
The issue for the court to decide was whether it was reasonable for the employer to require the employee to regularly work 2 additional hours per week.
The Decision
After carefully reviewing the factors in the Act the Judge found that the requirement to work a 40-hour work was unreasonable.
The Judge accepted that there may have been times when additional hours are required to meet client demands, but found the additional hours were not consistently and permanently required for the entirety of the employment.
In particular, the Judge observed that:
- The employee was not in a senior or managerial role, did not have supervisory responsibilities, and there was nothing in the nature of her role that required her to work more than 38 hours per week on a continuous and permanent basis.
- Although an additional 2 hours per week in isolation were not unreasonable, the frequency, regularity and length of time over which the additional hours were worked were unreasonable.
Implications
The case highlights that, even though 40-hour work weeks have been commonplace in Australian workplaces, employers must have sufficient grounds to regularly require those working hours.
The case also emphasises the importance of ensuring that pay arrangements clearly compensate an employee for working additional hours.
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