In our last blog we highlighted the importance of understanding and correctly applying relevant workplace awards to industry and job types, and staying up to date with changes to awards. Failure to comply with awards can result is serious implications including legal action and penalties.
This was the case for a meat wholesaler who enforced a 50 hour work week for an employee, which resulted in over $90,000 in penalties imposed by the Federal Court.
The Fair Work Act 2009 stipulates a full-time employee is not required to work more than 38 hours a week, unless the extra hours are ‘reasonable’. The employee must also be able to decline additional hours if they are seen to be ‘unreasonable’.
In accordance with Fair Work standards, there are a number of points to consider to ensure overtime hours are reasonable, such as:
- Is the employee’s health and safety at risk if they work extra hours?
- Employee’s circumstances, including knowledge and ability to understand Australian workplace standards and legislation.
- Was the employee adequately compensated for working extra hours?
- Did the employee receive notice requesting working extra hours?
- Does the employee’s role present a need for them to work longer hours, such as a supervisor or manager?
In this case, the court also found the employee was wrongly classified under the Meat Industry Award 2010 and did not receive any overtime rates. The employer also failed to provide the employee with copies of the award, the National Employment Standards, a Fair Work Information Statement and did not publish a roster at the worksite. The court considered the employers actions to be deliberate and executed over a long period of time. These breaches of the Fair Work Act and the relevant award resulted in the employer paying $93,000 to the employee and a penalty of $30,000 as a deterrence and for the employers’ disregard for the law.
Employers need to be careful when requiring employees to work more than 38 hours a week. The parameters around ordinary hours of work and overtime should be clearly stated in employee contracts and in align with the Fair Work Act and relevant awards.