Hours of work differ depending on the employment type, employee contract, and if the employee is working under a modern award, enterprise agreement, or registered agreement. In December 2017, the Fair Work Commission made changes to part-time and casual provisions in some awards.
hours of work
Ordinary hours are the employee’s normal and regular hours of work. These do not include overtime or attract overtime rates. Modern awards, enterprise agreements or any other registered agreements set out the minimum and maximum ordinary hours that can be worked in a day (as well as the times of the day).
Ordinary hours can be different for full-time, part-time, and casual employees.
spread of hours
The spread of hours is the time of day that ordinary hours are worked, e.g. 7am to 7pm. Any hours worked outside of those hours can attract overtime rates. These can vary depending on the award.
Maximum weekly working hours form part of the National Employment Standard (NES). A full-time employee can work a maximum of 38 hours per week, unless an employer asks them to work reasonable additional hours. Reasonable hours can be determined by taking into account such elements as:
● employee’s personal circumstances, including family responsibilities
● any risk to employee health and safety
● needs of the workplace or enterprise
● the usual patterns of work in the industry
● the nature of the employee’s role and responsibilities
● any notice given by the employer to work the additional hours
● any notice given by the employee of their intention to refuse to work the additional hours
● whether the employee is entitled to receive overtime payments, penalty rates, or compensation for working additional hours.
averaging of hours
An award or enterprise agreement may also include an averaging of hours worked over a specified period that is greater than a week. The average weekly hours must not exceed 38 hours, any hours worked in excess of the average 38 hours would be treated as additional hours, and the above factors would also determine if those hours were reasonable.
Employers and employees that are not working under an award or agreement may agree in writing to an averaging arrangement to average their ordinary hours of work. However, the maximum averaging period is 26 weeks, the average weekly hours must not exceed 38 hours for a full-time employee, and any hours worked in excess of 38 hours per week will be treated as additional hours.
Under the Fair Work Act 2009 it is unlawful for an employer to force (or try to force) an employee to make (or not make) an averaging arrangement.
A rest break allows an employee to rest for a short period of time during working hours. Rest breaks are also known as ‘tea breaks’, ‘crib breaks’, or ‘rest pauses’.
A meal break allows an employee to eat a meal, e.g. lunch. A break for a meal is not part of the NES, and an employee’s entitlement to a meal break is subject to the provisions set out in the relevant modern award, enterprise agreement, or contract of employment. There is no requirement to provide a meal break for non-award or agreement employees, but the employer would need to consider the health and safety consequences of employees working long hours without a break.
Day workers usually have an unpaid meal break for a minimum of 30 minutes and up to an hour, with many awards and agreements limiting the number of hours an employee can work without a break – five hours is usually the maximum.
A roster is a timetable that shows the days and times employees are required to work. Any changes to an employee’s regular roster or ordinary hours or work must be discussed with the employee(s) first.
An employer must provide information about the proposed changes and when they will take effect, invite the employee to give their views about the proposed changes, and consider these views about the impact of the proposed changes.
Awards, enterprise agreements and registered agreements can set out additional rules about changing rosters, and how and when employees are given rosters.
A rostered day off (RDO) is a day in a roster period that an employee doesn’t have to work. This can be paid or unpaid, depending on how RDOs are set out in the award or agreement.
Overtime is defined as time worked in addition to normal working hours, and can include work done by employees:
● in excess of their ordinary hours
● outside the agreed number of hours, and
● outside the spread of ordinary hours.
An award or agreement will set out when overtime rates apply. In December 2017, the Fair Work Commission made changes to part-time and casual provisions in some awards.
An employer can request that overtime be worked, as long as the overtime is deemed reasonable, e.g. the employer has taken into account the following:
● any risk to health and safety from working the extra hours
● the needs of the workplace and usual patterns of work in the industry
● the employee’s personal situation, including their family responsibilities
● if the employee is entitled to receive overtime payments or penalty rates for working the extra hours
● if they are paid at a higher rate on the understanding that they work some overtime
● if the employee was given enough notice that they may be working overtime
● if the employee has already stated that they can’t ever work overtime.
An employee can refuse to work overtime if the request is unreasonable.
Overtime is usually paid at the higher rate, and some awards and registered agreements allow time off in lieu (TOIL) instead of paid overtime pay.
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