In a recent decision on 6 May 2022, the Federal Court has held that an employer contravened the Fair Work Act 2009 (Cth) (“the Act”) after requiring its employee to work unreasonable hours in excess of 38 hours per week in contravention of the National Employment Standards (“NES”).
Samuel Boateng had recently arrived in Australia from Ghana, when he secured employment with Dick Stone Pty Ltd (|Dick Stone”), a large meat wholesaler, to work as a knife hand/labourer for 50 ordinary work hours a week commencing from 2:00am Monday to Saturday, plus reasonable additional hours as requested. The documents he was given in his Employment Commencement Pack did not mention what he would be paid, nor if he would be entitled to overtime.
The Australasian Meat Industry Employees Union commenced proceedings on Mr Boateng’s behalf, contending that the employer’s requirement to work 50 hours per week was not reasonable, and that Mr Boateng was also not paid his correct overtime or penalty entitlements. Dick Stone argued that 50 ordinary hours of work was a term of Mr Boateng’s contract into which he freely entered and that, while Mr Boateng was not paid overtime as such for the additional 12 hours per week, he was paid a blended rate which incorporated overtime.
The relevant issue (amongst others) was whether it was reasonable for Dick Stone to require or request Mr Boateng to work the 12 additional hours every week.
The key factors to consider in deciding whether additional hours are reasonable or unreasonable are set out in s 62(3) of the Act, and are as follows:
- any risk to employee health and safety from working the additional hours;
- the employee’s personal circumstances, including family responsibilities;
- the needs of the workplace or enterprise in which the employee is employed;
- whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of renumeration that reflects an expectation of, working additional hours;
- any notice given by the employer of any request or requirement 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, or the part of an industry, in which the employee works;
- the nature of the employee’s role, and the employee’s level of responsibility;
- whether the additional hours are in accordance with averaging terms included under section 63 in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee under section 64;
- any other relevant matter.
Justice Katzmann’s decision was that Dick Stone contravened the NES by unreasonably requiring Mr Boateng to work an additional 12 hours per week. She observed that although Mr Boateng had freely agreed to the terms of his employment, he was given no choice but to work the 50-hour weeks, reflected by Mr Boateng’s evidence that, “if he were given a choice, he would not have chosen to work those hours”.
Referring to the s 62(3) factors set out above, Justice Katzmann considered:
- the risk to Mr Boateng’s health and safety from the fatigue of working the additional hours, especially when the work was physically demanding, and required the use of knives;
- Mr Boateng’s personal circumstances as a person vulnerable to an unreasonable working contract. He had only been in Australia for three weeks before commencing employment, and had little or no knowledge of Australian law, including his award entitlements and workplace rights (Dick Stone also did not provide him with a Fair Work Information Statement). Mr Boateng was married, with a child, and corresponding familial responsibilities which were impacted by the long work hours, and only having one day a week off from work; and
- Dick Stone did not provide evidence to suggest Mr Boateng’s working hours were the usual patterns of work in the meat industry. The Meat Industry Award 2010 suggested that the usual pattern of work in the nature of Mr Boateng’s employment was to start from 4am, rather than 2am.
On balance, all of these factors pointed to the conclusion that it was unreasonable for Dick Stone to have required Mr Boateng to work 12 extra hours per week above the 38 ordinary hours stipulated in the Act.
This case demonstrates that additional hours may be considered unreasonable in the circumstances, regardless of whether the employee consents to them, and serves as a warning for employers wishing to stretch the boundaries their employee’s ordinary work hours. The case is set down for a further hearing on penalties or compensation to be awarded.
~ with Philippa Thorne, Graduate-at-Law