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What are the maximum weekly hours of work?

Maximum weekly hours of work

An employer must not request or require an employee to work more than the following hours of work in a week, unless the additional hours are reasonable:

  • for a full-time employee, 38 hours or
  • for an employee other than a full-time employee, the lesser of:
    • 38 hours
    • the employee’s ordinary hours of work in a week.

The hours an employee works in a week must be taken to include any hours of leave or absence (paid or unpaid) that is authorised:

  • by the employer or
  • by or under a term of the employee’s employment or
  • by or under a Commonwealth, State or Territory law, or an instrument in force under such a law.

An employee may refuse to work additional hours if they are unreasonable.

What factors determine whether additional hours are reasonable?

In determining whether additional hours are reasonable or unreasonable, the following must be taken into account:

  • any risk to employee health and safety
  • the employee’s personal circumstances, including family responsibilities
  • the needs of the workplace or enterprise
  • whether the employee is entitled to receive overtime payments, penalty rates or other compensation for (or a level of remuneration that reflects an expectation of ) working additional hours
  • any notice given by the employer to work the additional hours
  • any notice given by the employee of his or her intention to refuse to work the additional hours
  • the usual patterns of work in the industry
  • the nature of the employee’s role and the employee’s level of responsibility
  • whether the additional hours are in accordance with averaging provisions included in an award or agreement that is applicable to the employee, or an averaging arrangement agreed to by an employer and an award/agreement-free employee
  • any other relevant matter.

What averaging arrangements can apply to hours of work?

Averaging of hours of work under awards or agreements

An award or agreement may include provisions for the averaging of hours of work over a specified period that is greater than a week.

The average weekly hours over the period must not exceed:

  • for a full-time employee, 38 hours or
  • for an employee other than a full-time employee, the lesser of:
    • 38 hours
    • the employee’s ordinary hours of work in a week.

An award or agreement can provide for average weekly hours that are greater than the hours above if those additional hours are considered reasonable.

In either case, hours worked in excess of the above average weekly hours will be treated as additional hours. The averaging provisions are relevant in determining whether the additional hours are reasonable or not.

Illustrative example

The award regulating Malcolm’s employment includes averaging arrangements in relation to hours of work, so that full-time employees would ordinarily work 152 hours over four weeks (an average of 38 hours per week). Over a four week period, Malcolm’s work pattern is as follows:

Week 1 – worked 21 hours

Week 2 – worked 60 hours

Week 3 – worked 38 hours

Week 4 – worked 33 hours

The averaging arrangement would be relevant in determining the reasonableness of the additional 22 hours that Malcolm was required to work in Week 2. Other factors such as Malcolm’s family responsibilities, his health and safety, and the notice he was given of having to work the additional 22 hours would also be relevant.

Averaging of hours of work for award/agreement free employees 

Employers and award/agreement-free employees may agree in writing to an averaging arrangement to average their ordinary hours of work. However, the maximum averaging period is 26 weeks.

Again, the average weekly hours over the period must not exceed:

  • for a full-time employee, 38 hours or
  • for an employee other than a full-time employee, the lesser of:
    • 38 hours
    • the employee’s ordinary hours of work in a week.

Alternatively, the agreement can provide for average weekly hours that are greater than the hours above if those additional hours are considered reasonable.

In either case, hours worked in excess of the above in a week will be treated as additional hours. The averaging arrangement agreed between the employer and employee will be relevant in determining whether the additional hours are reasonable or not.

 

Do I have to enter into an averaging arrangement?

There is no requirement for an employer and employee to enter into an averaging arrangement.

Under the general workplace protections provisions of the Fair Work Act 2009, it is unlawful for an employer to force (or try to force) an employee to make (or not make) an averaging arrangement.

The Fair Work Ombudsman can investigate allegations of contraventions of the general protections provisions. Where identified, the Fair Work Ombudsman can initiate legal action for penalties of up to $10,800 for an individual and $54,000 for a corporation.

 

GAP Communications started with a 3-man operation and has now grown into a National Operation of over 300 staff. People Business has been associated with our company on a consulting basis since its inception. During the turmoil of the last six years their guidance has played a crucial and integral part in the successful growth of our company. Adam Clark and his team manage to combine a client first approach to business with a down to earth humanitarian approach to the issues at hand. I can't recommend Adam and his team strongly enough.
Andrew BateyManaging Director, GAP Communications
Ausmelt Limited has approximately 50 professional qualified staff comprising mainly metallurgists and engineers. As a small company, Ausmelt does not have a full time HR Manager, opting to use the consultancy services of Adam Clark and his team. Adam has successfully work hand-in-hand with Ausmelt management to help with staff recruitment, staff development plans, performance planning and assessment, short and long term staff incentive schemes, salary benchmarking, staff termination and redundancy, counselling and job search assistance. I have been more than happy with the level of professionalism, enthusiasm and expertise that Adam and his team has provided to our Company.
Paul AbbotManaging Director, Ausmelt Limited
Adam and his team have delivered an outsourced HR solution to our company for the past 10 years. Adam is a natural fit to our organization and I now consider him part of our senior management team. Once goals are determined he is able to deliver the required outcomes in a timely and professional manner. He provides excellent advice and is always reliable. Adam also handles our recruitment needs which has saved us thousands in agency fees. In summary I would say "Highly recommended".
Rob GreenCEO, CommTel Communications Pty Ltd
Creative Brands has two iconic Australian brands, “Australis” cosmetics and "Le Tan" sunscreens and tanners. As a relatively small company with a staff of 60 we were unable to justify the appointment of a full time HR Manager. As such the flexible and cost effective package offered by People Business represented an ideal fit for our organization. We were able to draw on a comprehensive suite of HR services which were delivered in a professional manner at all times. Taking into consideration both quality and cost I am happy to recommend Adam Clark and his team as a viable and pragmatic HR solution.
Stephen MasonManaging Director, Creative Brands Pty Ltd
Adam and his team have provided an outsourced HR solution to our organisation for 4 years, effectively becoming a part time member of the senior management team, fulfilling all HR requirements typically provided by a Senior HR Manager. Adam successfully recruited around 30 people to our company, a number of which comprised senior and middle management roles. I believe that his business represents a cost effective HR option ideally suited to small and/or growing companies and I have no hesitation in recommending Adam Clark and his team to similar organisations.
Hugh GleesonChief Executive Officer, United Energy and Multinet Gas
I've worked with Adam and his team for over 3 years, developing and implementing an organisational HR System for Stornoway's 50+ permanent staff. As a medium-sized enterprise, I needed cost-effective HR support and someone my staff would be comfortable with. I'm confident that, with their ongoing support, I can continue to meet my HR needs without an in-house specialist.
Tim GardnerGeneral Manager, Stornoway Contracting Pty Ltd
Adam and his team have been facilitating a number of training sessions for City of Port Phillip over the last few years. People Business have always been available to work with me to provide the most relevant, well organised training sessions to meet the diverse needs of our staff.
Leanne BickleyOrganisation Development & Training Consultant, City of Port Phillip
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