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When do excessive hours become a WHS issue?

Can an employer get into strife if employees work excessive hours?
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When do excessive hours become a WHS issue?

When do excessive hours become a WHS issue?

4 May 2021

By Australian Business Lawyers & Advisors

Employees often have to work longer hours to get a job done. But where is the line drawn between what is reasonable and what is excessive? And when can an employer get into strife if employees work excessive or unreasonable hours?

Worked to the point of collapse

A recent case involved an abattoir employee who was required to work 24-hour on call shifts to deal with machine breakdowns. He collapsed twice from stress and exhaustion and also developed depression, anxiety and insomnia from working excessive hours.

He was successful in suing his employer in the Supreme Court of Victoria, which ruled that the employer had breached its duty of care obligations to him.

The court found the employer had not taken “reasonable care to avoid any foreseeable risk of psychiatric injury” when the employee made regular complaints about the increased work pressures he faced, despite agreement to work extended hours for a significant pay increase.

The employee had made numerous complaints and the employer knew, or ought to have known, there was a reasonably foreseeable risk of a psychiatric injury.

Critically, the court found that the hours worked by the employee increased well beyond what was anticipated at the time the contract was signed. It also found that measures to deal with the excessive hours – including connecting the employee with an employee assistance program, reducing the employees workload by taking away sales, asking other managers to provide assistance and assigning the management of the maintenance of the rendering plant over to another company – were inadequate.

The court is yet to decide on the appropriate damages to be awarded to the employee.

Performing a contract is not a breach

Another 'excessive hours' case had a markedly different outcome. An employee entered into a contract to work as a sales employee, initially on a full time basis although this later changed to part-time employment working three days per week.

The employee complained to her employer that she could not complete the work assigned to her and made requests for extra help, extensions for deadlines and reallocation of her work.

There was evidence before the High Court that the work was excessive by industry standards. However, the employee had signed a contract that stipulated the particular duties and requirements of the position, therefore the High Court found in the employer’s favour on the basis that “insistence upon the performance of a contract cannot be in breach of a duty of care.”

What does the law say are reasonable additional hours?

An employee may refuse to work additional hours if they are unreasonable.

The National Employment Standards in the Fair Work Act 2009 (Cth) (“FW Act”) provides guidance in relation to determining whether additional hours are reasonable including taking into consideration factors such as:
  • any risk to an employee’s health and safety from working additional hours
  • the employee’s personal circumstances, including family responsibilities
  • the needs of the workplace in which the employee is employed
  • whether the employee is entitled to receive overtime payments, penalty rates or other compensation
  • if the employer gave the employee notice of any request or requirement to work the additional hours and conversely, if the employee gave notice of his or her intention to refuse to work the additional hours
  • the usual patterns of work in the industry in which the employee works
  • the nature of the employee's role, and the employee's level of responsibility, and
  • whether the additional hours are in accordance with averaging terms included in a modern award or enterprise agreement that applies to the employee, or with an averaging arrangement agreed to by the employer and employee.

Obviously an employee’s contract may contain a provision which provides the employee’s agreement to work reasonable additional hours given the needs of a particular industry or to get the job done.

Risks and lessons for employers

Working excessive hours often contributes to fatigue, stress and mental health issues. Business owners and managers should understand the relevant factors to consider under the National Employment Standards for determining whether additional hours are reasonable.

If an employee is required to work excessive hours, claims that could be made include a breach of:
  • the National Employment Standards
  • the FW Act
  • the relevant state or territory work health and safety laws
  • the relevant state or territory workers compensation laws; and
  • the common law duty of care.

If an employee is successful in one or all of these claims, remedies include potentially significant awards of compensation, damages and penalties, and in the case of WHS prosecutions, potential criminal convictions.

Control risks

The best way to control risks associated with excessive working hours is to:
  • conduct a risk assessment and determine ways to eliminate factors causing fatigue and
  • implement systems and procedures to manage fatigue in the workplace.

Employees also play a part in managing their hours and workloads, and while it is very important to take heed of an employee’s complaint, an employer should not solely rely on an employee to manage their hours or alert them in circumstances where they feel overwhelmed and overworked.

Employers should be mindful to carefully determine ways in which to eliminate or minimise the need to work additional hours and to take all reasonable steps to manage the hours worked by their employees.

If it is an unavoidable feature of the industry in which the work is performed, employers should monitor the additional hours that are worked to ensure they do not pose a health and safety risk to the worker or others. We also recommend all contracts of employment contain a provision which provides an employee’s agreement to work reasonable additional hours.

If you have any questions in relation to the article or your business’ particular circumstances, contact Australian Business Lawyers on 1300 565 846.
This analysis was written by Australian Business Lawyers & Advisors.

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