From 1 January 2010 maximum weekly hours form part of the National Employment Standards (NES) and replace the maximum ordinary hours of work entitlements under the Australian Fair Pay and Conditions Standard (the Standard).

 

The NES sets out the maximum weekly hours for employees and also the circumstances in which an employee may refuse a request or requirement to work additional hours if the hours are unreasonable.

 

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 and the employee’s ordinary hours of work in a week.

 

When calculating the number of hours an employee has worked per week, any authorised leave, such as personal leave, should be included.

 

An employee may refuse to work additional hours, if they are unreasonable. For additional hours to be 'reasonable', all relevant factors must be considered.

 

These factors include:

• any risk to the employee's 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 that they intend 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 agreed averaging arrangements
• any other relevant matter.

 

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

 

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

 

The average weekly hours over the period must not exceed an employee’s normal maximum weekly hours, shown above, unless those hours are considered reasonable.

 

There is no requirement for an employer and employee to enter into an averaging arrangement. An employer cannot force or try to force an employee to make or not make an averaging arrangement.

 

Penalties of up to $6,600 for an individual and $33,000 for a corporation can apply.