Introduction
Changes to both the Workplace Relations Act 1996 (WR Act) and the Workplace Relations Regulations 2006 provide that an employee cannot be required or requested to work more than 38 hours per week, plus reasonable additional hours.
This does not necessarily mean bad news for your business. On the contrary, employees may well be more alert, have happier home lives and be more fulfilled and therefore productive at work.
The Australian Fair Pay and Conditions Standard guarantee
The Australian Fair Pay and Conditions Standard (the Standard) is in charge of protecting this right.
By law, an employee and employer must agree in writing that the employee’s hours of work are to be averaged over a period of no more than 12 months (e.g. 152 hours over 4 weeks). That agreement must be through an award, workplace agreement or by other means (e.g. contract of employment). Net Lawman suggest you implement this in a written employment contract.
How the Standard interacts with awards
To keep things simple, most federal awards already include a 38 hour week.
If a pre-WorkChoices award provided for 38 ordinary hours of work or less per week, that stated number of hours in the award continues to apply.
Awards which provide for more than 38 ordinary hours of work per week must comply with the Standard within three years of WorkChoices commencing.
What are ‘reasonable additional hours’?
This is a good question. It should be approached objectively. In determining whether the additional hours an employee is requested or required to work are ‘reasonable’, a number of factors should be considered, including (but not limited to):
- any health and safety risks to the employee;
- the employee’s personal circumstances including family responsibilities;
- the commercial requirements of the business;
- whether additional hours are on a public holiday;
- the employee’s hours of work in the four weeks prior to the request; and
- the notice (if any) given by the employer of the additional hours and by the employee of his or her intention to refuse it.
Payment for hours worked
Employees must receive at least the relevant minimum or classification hourly wage for each hour they work, including additional hours.
Provision for penalty rates for additional hours should be included in relevant awards and agreements. Penalty rates in awards can only be modified or removed by express provision in a new workplace agreement. | 
