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What happens if I ask my employee to work more than 38 hours per week? 

September 28, 2023   Philip EvangelouWendy Lee

Understanding the laws and rules about employer and employee rights can be a bit tricky. Without even knowing it, these rules can be easily broken. 

Can an employer ask their employee to work more than 38 hours? Is an employee obliged to work more than 38 hours per week if their employer asks them to? 

Section s 62(1) of the Fair Work Act requires that employers cannot request or require their employees to work more than 38 hours if they work full-time unless the additional hours are reasonable. Similarly, for a part-time employee, an employer cannot require them to work for more than 38 hours or more than their ordinary hours of work in a week, unless the additional hours are reasonable (whichever is less). 

Federal Court Decision in Australasian Meat Industry 

A recent case in the Federal Court asked this same question. In Australasian Meat Industry Employees Union v Dick Stone Pty Ltd [2022] FCA 512, the court ruled that an employer was in breach of the Fair Work Act 2009 (Cth).  

This is because the employer: 

  1. Required their employee to work an additional 12 hours over the maximum number of hours set out by the Act; 
  1. Failed to provide their employee with a copy of the Fair Work Information Statement before or as soon as they could after the employee commenced their employment; 
  1. Did not properly pay their employee for the hours they had worked overtime; 
  1. Failed to provide copies of the Modern Award and the National Employment Standards that employees are entitled to on being employed; and 
  1. Failed to post a roster with the start and finish times of the employee’s ordinary hours. 

In Australasian Meat Industry, an employer required their employee to work 50 ordinary hours per week, plus additional hours as requested. In determining whether requiring the employee to work this amount of hours was reasonable, the court considered not only s 62 of the Fair Work Act but also the personal circumstances of the employee. 

The Employer 

The court considered the employer’s position in deciding whether requiring an employee to work more than 50 hours per week was reasonable. In these circumstances, whilst working more than 50 hours per week was what the employer needed, it was not reasonable for them to require their employee to work that much. 

It did not matter that the employer gave notice to their employee every time they requested them to work about 50 hours; it was an unreasonable request. 

The Employee 

The court also considered the employee’s position and the fact that, because they were a migrant, they would have had little knowledge of Australian law. 

But what was of particular importance to the court was the conditions the employee was working under and subject to. The court accepted that the employee’s health was put at risk due to the early start time of his work (sometimes 2am) and the nature of his work which required him to handle dangerous sharp objects, including knives and machines, designed to cut meat. These two conditions and the likely fatigue of the employee meant that the likelihood of an accident occurring was high.  

The fact that the employee:  

  • Was also entitled to, but not paid, overtime rates in accordance with the Modern Award he was under; 
  • Did not challenge his working hours out of fear of being fired; and 
  • Was not required by his role to work 12 additional hours (on top of the regular 38 hours a full-time employee can work) and did not have any supervisory responsibilities

were also relevant to the court. Altogether, these factors meant that it was unreasonable for the employee to work 50 hours, instead of the 38 the employer would be entitled to require under the law.  

What does this mean for you as an employer? 

The key takeaway to understand from this recent decision is that there are certain rights that employees are entitled to that cannot be infringed, no matter the needs of your business. 

The employer was ordered by the court to pay $93,000 AUD in penalties to the employee, of which $30,000 was calculated from the employer’s breach of s 62 for excessive ordinary hours. 

As an employer, it is important to avoid requiring an employee to work longer than 38 hours per week as this might mean you are in breach of the Fair Work Act if the court finds the additional hours are unreasonable. A breach may even require you to pay penalty fees. 

If you are uncertain what your rights and obligations are as an employee or employee, do not hesitate to contact our legal team via the form on this page or to call us on 1300 337 997. 

Photo by Mina Rad on Unsplash

About Philip Evangelou

phillipPhil is a director at OpenLegal. He has over 16 years experience working in private practice and in-house counsel in Sydney and London, giving him expertise in employment law, IP, finance, leases, dispute resolution, insurance and contracts.

About Wendy Lee

Avatar photoWendy is a student at UNSW studying a Bachelor of Commerce and Law. She is interested in commercial law, and the interconnections between data, human rights and law.