Updated: Apr 27, 2021
As many businesses return to trading at near-normal levels, you may find yourself in the position of needing your employees to work additional hours to keep up with increased demand and patronage at your business.
If you have asked your employees to work extra hours beyond their regular hours or rostered shifts, keep the following matters in mind (or you may find yourself falling foul of the requirements of the Fair Work Act 2009):
1. A request to work extra hours must be reasonable
Any request you make for an employee to work additional hours in excess of their ordinary working hours must be ‘reasonable’. What is ‘reasonable’ in one case may be completely ‘unreasonable’ in other.
When determining whether your request is ‘reasonable’ consider:
the need for your business to have these additional hours worked;
the personal circumstances of your affected employees, such as their commitments to care for their children or other family members;
the amount of notice you give your employee of the additional hours you need them to work; and,
whether your employee’s employment contract addresses requests to work additional hours from time to time.
An employee can decline your request to work additional hours if it is unreasonable.
2. An employee must be paid for all time worked
Traditionally, people think of time spent ‘working’ as time spent at the workplace during an employee’s rostered shifts. However, it is important to remember that employees will be considered to be ‘working’ while undertaking other work-related activities and are entitled to be paid for this time as well.
For example, employees are entitled to be paid for attending work meetings, undertaking training or completing the opening and closing of your business. If these activities occur outside of your employees’ usual rostered shifts, you will need to request their attendance and pay them for this time.
3. Overtime or penalty rates may be payable on additional hours worked
If you request an employee work additional hours outside of their ordinary working hours or on a designated public holiday, it is likely you will be required to pay your employee overtime or penalty rates for all time worked in excess of their ordinary working hours.
If your employees are remunerated on another basis (for example, they are paid an annual salary, which may already take into account additional hours that may be worked by your employees), they may not be entitled to additional pay.
If you are an employer who requires assistance in this area, our specialist employment team are here to help!
John Sneddon, Partner
(07) 3307 4504
Ruby Nielsen, Associate
(07) 3307 4551
Emma Lewis, Law Graduate
(07) 3307 4546