Read our fact sheet on maximum weekly hours an employee can work under the National Employment Standards.
Overview
Maximum weekly hours forms part of the National Employment Standards (NES). The NES apply to all employees covered by the national workplace relations system, regardless of any award, agreement or contract.
The NES establish the maximum weekly hours for employees, as well as the circumstances in which an employee may refuse a request or requirement to work additional hours if the hours are unreasonable.
They also set out arrangements for the averaging of hours of work under an award or agreement, or by agreement between an employer and an award/agreement-free employee.
Download the fact sheet:
What are the maximum weekly hours of work?
An employer must not request or require an employee to work more than the following hours of work in a week, unless the additional hours are reasonable:
- for a full-time employee, 38 hours or
- for an employee other than a full-time employee, the lesser of:
- 38 hours
- the employee’s ordinary hours of work in a week.
The hours an employee works in a week must be taken to include any hours of leave or absence (paid or unpaid) that is authorised:
- by the employer or
- by or under a term of the employee’s employment or
- by or under a Commonwealth, State or Territory law, or an instrument in force under such a law.
An employee may refuse to work additional hours if they are unreasonable.
What factors determine whether additional hours are reasonable?
In determining whether additional hours are reasonable or unreasonable, the following must be taken into account:
- 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.
What averaging arrangements can apply to hours of work?
Averaging of hours of work under awards or agreements
An award or agreement may include provisions for the averaging of hours of work over a specified period that is greater than a week.
The average weekly hours over the period must not exceed:
- for a full-time employee, 38 hours or
- for an employee other than a full-time employee, the lesser of:
- 38 hours
- the employee’s ordinary hours of work in a week.
An award or agreement can provide for average weekly hours that are greater than the hours above if those additional hours are considered reasonable.
In either case, hours worked in excess of the above average weekly hours will be treated as additional hours. The averaging provisions are relevant in determining whether the additional hours are reasonable or not.
The award regulating Malcolm’s employment includes averaging arrangements in relation to hours of work, so that full-time employees would ordinarily work 152 hours over four weeks (an average of 38 hours per week). Over a four week period, Malcolm’s work pattern is as follows:
Week 1 – worked 21 hours
Week 2 – worked 60 hours
Week 3 – worked 38 hours
Week 4 – worked 33 hours
The averaging arrangement would be relevant in determining the reasonableness of the additional 22 hours that Malcolm was required to work in Week 2. Other factors such as Malcolm’s family responsibilities, his health and safety, and the notice he was given of having to work the additional 22 hours would also be relevant.
Averaging of hours of work for award/agreement free employees
Employers and award/agreement-free employees may agree in writing to an averaging arrangement to average their ordinary hours of work. However, the maximum averaging period is 26 weeks.
Again, the average weekly hours over the period must not exceed:
- for a full-time employee, 38 hours or
- for an employee other than a full-time employee, the lesser of:
- 38 hours
- the employee’s ordinary hours of work in a week.
Alternatively, the agreement can provide for average weekly hours that are greater than the hours above if those additional hours are considered reasonable.
In either case, hours worked in excess of the above in a week will be treated as additional hours. The averaging arrangement agreed between the employer and employee will be relevant in determining whether the additional hours are reasonable or not.
Do I have to enter into an averaging arrangement?
There is no requirement for an employer and employee to enter into an averaging arrangement.
Under the general workplace protections provisions of 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. Where identified, the Fair Work Ombudsman can initiate legal action against the employer.
For more information on general protections, please see our Protections at work fact sheet.
Contact us
Fair Work Online: www.fairwork.gov.au
Fair Work Infoline: 13 13 94
Need language help?
Contact the Translating and Interpreting Service (TIS) on 13 14 50
Hearing and speech assistance
Call through the National Relay Service (NRS):
- For TTY: 13 36 77. Ask for the Fair Work Infoline 13 13 94
- Speak and Listen: 1300 555 727. Ask for the Fair Work Infoline 13 13 94
Related information
By: Taylor Stanton
Congratulations! Your small business is growing and getting very close to reaching the 50-employee mark. This is an exciting milestone–but one that should be giving you pause as an employer. Here’s why.
Reached the 50-employee threshold and freaking out about regulations? Before you panic, read this article. Click To TweetReaching 50 employees is a sign your company is growing—be proud of that accomplishment! But it also means you’ve reached a size where HR compliance becomes more complex. Fifty is the “magic” (or perhaps, “not-so-magic”) number at which employers become subject to additional federal and state regulations. So celebrate your win, but also make sure your organization is prepared to handle the intricacies of HR compliance for 50+ employees.
What changes at 50 employees?
With more than 50 employees, your paid time off and leave policies should be locked down (especially regarding leave). The days of case-by-case decisions should be long gone; instead, leave policies should be codified in your employee handbook.
Make sure your employee handbook contains everything it needs to. This free template lists all the mandatory items you need to include as well as some optional, but recommended, items.
2. Dealing With The Family and Medical Leave Act (FMLA)
Employers with 50 or more employees within a 75-mile radius have different FMLA requirements than smaller businesses. At this point, employers must offer up to 12 weeks of unpaid, job-protected leave to eligible employees following the birth, adoption, or foster placement of an employee’s child, or for serious family illness. Some states require paid parental leave, which you should also be prepared for.
Among other requirements, employers are required to post labor law notices at the office with specific language. Read through this FMLA FAQ to learn what else you need to do in relation to this labor law.
Important! FMLA requirements kick in if an employer arrives at 50 employees at any point during the year. If your company hovers at around that number consistently, it’s a good idea to implement your leave policy so you are prepared to comply when you reach 50. Contact us for help getting started.
3. Dealing With The Affordable Care Act (ACA)
Once employers are in this 50-employee bucket, they are required to provide health insurance to employees and to indicate they’ve provided it through complex end-of-year reporting. The IRS will fine non-compliant small businesses.
Some of the provisions of the ACA apply only to large employers, which are generally those with 50 or more full-time equivalent employees. These employers are considered applicable large employers—also known as ALEs—and are subject to the employer shared responsibility provisions and the annual employer information return provisions.
According to the IRS in its explanation of the ACA, calculating the number of employees is especially important for employers that have close to 50 employees or whose workforce fluctuates throughout the year. To determine its workforce size for a year an employer adds its total number of full-time employees for each month of the prior calendar year to the total number of full-time equivalent employees for each calendar month of the prior calendar year and divides that total number by 12. You can’t skirt this law by having part-time or seasonal employees, as it is based on total hours worked.
4. EEO-1 Reporting
As a company with more than 50 employees, the U.S. government requires you to submit the EEO-1 report, which discloses the makeup of your employee demographic. The U.S. Equal Employment Opportunity Commission collects this company employment data by type and level of position, and the requirements can be complex for employers to navigate. To simplify this reporting, Genesis produces the EEO-1 on behalf of our partners and provides it to the government.
5. Various State Laws
Depending on which state or states your organization operates in, you may be required to comply with other laws upon reaching the 50-employee threshold. As New England’s premier PEO, Genesis can assist you in identifying compliance requirements and providing an action plan to meet them.
Resources For Small Business Leaders
The Society for Human Resource Management (SHRM) and the Department of Labor websites are both valuable tools for helping employers understand laws for companies with over 50 employees.
If you’re looking for a personal touch when it comes to staying compliant, consider working with Genesis. Staffed by knowledgeable, experienced individuals, our PEO is an asset to small and midsize businesses looking to navigate complex HR regulations and requirements. Let’s schedule a free discovery call now to talk about how Genesis HR Solutions can help relieve you of the burden of HR, payroll, benefits administration, and more.