Oct 22nd, 2021
While an employee may be contracted to perform a certain number of hours per week, it is not uncommon for businesses to request that they perform additional hours. This may be due to a shortage in staffing, or a spike in business demand, or a whole host of other reasons. However, it is important for employers and employees to keep in mind that this overtime does not become excessive and put strain on the employee.
This article will look at the impact of excessive overtime hours and how both employers and employees can collaborate to eliminate or at least mitigate the risks they pose.
What are “reasonable” additional hours?
A contract may contain provisions such that the employee agrees to perform reasonable additional hours, especially if the nature of the industry requires that they need to do so to complete their duties.
An employee can refuse to perform additional hours if they consider them unreasonable.
The National Employment Standards (NES)in the Fair Work Act 2009 do provide guidance as to what are considered “reasonable” additional hours. When requesting that an employee work additional hours, the following should be considered:
An Employer’s Duty of Care
- any risk to employee health and safety
- the employee’s personal circumstances, including family responsibilities
- the needs of the workplace or enterprise
- whether the employee is entitled to receive overtime payments, penalty rates or other compensation for (or a level of remuneration that reflects an expectation of ) working additional hours
- any notice given by the employer 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
- the nature of the employee’s role and the employee’s level of responsibility
- whether the additional hours are in accordance with averaging provisions included in an award or agreement that is applicable to the employee, or an averaging arrangement agreed to by an employer and an award/agreement-free employee
- any other relevant matter.
Under Work (Occupational) Health and Safety (WHS) legislation, an employer has a duty of care to their workers to take reasonable care to prevent injuries that arise out of the performance of their duties. If employees are consistently performing excessive work hours and are experiencing severe fatigue, an employer may be in breach of their duty of care.
As such, an employer should ensure they have appropriate safety policies and procedures in place in order to satisfy, if not any ethical obligations, then their legal obligations at the least.
Risk Factors for Working Excessive Hours
It follows that there are certainly risks and hazards associated with working excessive hours. Employees that are frequently engaged in overtime work will often be left feeling fatigued, mentally drained, and in extreme cases burnout is a severe concern. Over a long-term period, their performance can suffer.
The nature of the workplace will also impact the nature of the risks. If a worker is feeling overly fatigued, they can present a risk to others. When performing excessive overtime, fatigued workers are more prone to accidents and injuries that can also injure other individuals on site.
In certain industries, performing overtime on a regular basis can be unavoidable, but it is still important to mitigate the health and safety risks as much as possible.
Risk Management for Excessive Hours
The first step to managing the risk of engaging in excessive hours at work is to conduct a risk assessment.
From there, employers should determine methods to best eliminate or mitigate the factors that can cause fatigue, and implement policies and procedures to manage these risk factors.
These methods can involve a strict monitoring of employee work patterns to ensure they are not consistently working long or unsociable hours, and it can also involve flexible work arrangements such as allowing the employee to work from home, or making employees aware that they are encouraged to regularly take annual leave to refresh themselves.
The Role of an Employee
Employees should play an active role in any risk management process, and should be encouraged to regularly provide feedback concerning risks and hazards in the workplace, as per their right to consultation under the Work Health and Safety Act 2011.
It is also in the best interest of an employee to be aware of what might be considered unreasonable additional hours in their employment, and further to that, consider making alternative arrangements such as taking paid leave if they believe they are overworked, or on the cusp of burnout.
All in all, while occasionally working additional hours can be part and parcel of employment, particularly in certain industries, both employers and employees should be aware of the risks involved, and look to either remove these altogether or mitigate them as much as is reasonably practicable.
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