Hours of work

An employee’s hours of work must be agreed to by the employer and employee in a written employment agreement.

Employee work hours and rights

Hours of work in the may include:

  • the number of hours
  • the start and finish times, or
  • the days of the week the employee will work.

Employment agreements must fix the maximum number of hours to be worked by the employee at no more than 40 per week (not including overtime) unless the employer and employee agree otherwise. If the maximum number of hours (not including overtime) is less than 40, the employer and employee must try to fix the hours, so they are worked on no more than five days of the week.

Learning Module – Hours of work (Employee)(external link)

What activities are ‘work’

There is no strict definition of ‘work’. Work may include any activity where there are:

  • constraints on the freedom of an employee
  • responsibilities placed on an employee, and/or
  • benefits to the employer.

Generally, an activity will be work if it is “an integral part of the principal activity”.

Some examples of work include time spent in:

  • after-hours team meetings
  • opening and closing businesses
  • cleaning and tidying up
  • on-the-job training
  • product familiarisation.

Rights and responsibilities

Vinod just started as a sales assistant in a shop. Before his first shift, he was told to attend a staff meeting each day to discuss current promotions and find out about new products. Attending the meeting is not included in his employment agreement. This meeting would take 30 minutes before the start of business each day. 

While these meetings are quite informal, there is an expectation that Vinod will attend the meetings. Vinod has constraints placed on his free time. He has a responsibility placed on him because he is expected to listen to what is being said. And the employer benefits from his attendance at the meeting. This is work and Vinod must be paid for it.

Working overtime

Employee work hours are agreed to in an employment agreement and are generally the only hours that they need to be at work.

If the specific hours are not put into the employment agreement, then an accurate and timely written record will need to be kept of exactly what hours the employee has worked. For example, employees whose hours of work change so often that it’s not practical to put them in the agreement. 

Working overtime or extra shifts

Changing the hours of work

If an employee or employer wants to change the hours of work, both should agree to this in writing in the employment agreement. 

Hours of work in an employment agreement might include that an employee also does additional work, as reasonably required by an employer. The agreement should include any compensation for this overtime.

Employers must make sure that employees are paid at least the minimum wage for all the time that they work. This rule applies equally to overtime as well as normal hours.

If an employment agreement has the employee's hours of work, then an employer cannot change them without the employee's agreement.

If the employment agreement says that an employer can change the hours of work, the employer still has to act fairly and reasonably before they do.

If an employee thinks that the change to their hours is disadvantaging them and that the process the employer followed was unfair or there were no genuine reasons for changing the hours of work, they should first try to resolve the issue with their employer.

In some situations, an employer cutting back an employee’s hours may be proposed as an alternative to redundancy. For example, genuine financial, commercial or economic problems, or genuine business restructuring.

In these situations, the employer must follow the usual process for organisational change. This includes giving the employee a fair opportunity to consider and respond to the proposed change.

Workplace change process

Steps to resolve problems

Fair process

Cancelling shift

If an employee is a shift worker, their employer cannot cancel one or more of their shifts unless:

  • the employment agreement has:
    • a reasonable period of notice for cancellation, and
    • reasonable compensation for the employee if the employer cancels a shift without giving reasonable notice.
  • the employer either gives the employee the above notice or pays the reasonable compensation above
  • cancelling the shift does not breach the employment agreement.

To determine whether the period of notice is reasonable, an employer must consider all the relevant factors. These include:

  • the nature of the business, including whether they could control or see the situation that led to the proposed cancellation
  • the nature of the employee’s work, including the likely effect of the cancellation on the employee
  • the nature of the employee’s employment arrangements; this includes if there are agreed hours of work in the employment agreement, and if so the number of guaranteed hours of work (if any) included among those agreed hours.

Good faith

Types of worker

To determine how much is a reasonable amount to pay for shift cancellation, an employer must consider all the relevant factors. These include:

  • the shift cancellation notice period in the employment agreement and what the employee would have been paid if they had worked the shift
  • if the type of work means the employee would have incurred costs preparing for the shift.

If the employment agreement does not have a valid shift cancellation provision and the employer cancels a shift anyway, the employee must be paid what they would have been paid if they had worked the shift.

A valid shift cancellation provision includes a reasonable notice period and compensation for cancelling the shift. 

Employers must also pay employees what they would have been paid if they had worked the shift if:

  • the shift is cancelled but the employer does not tell the employee until the start of the cancelled shift, or
  • the rest of the shift is cancelled when the employee has already started the shift.

In this situation, the remuneration the employee gets when the shift is cancelled is included in their ordinary weekly pay and relevant daily pay. If the employer does not protect the employee's rights about having to be available for work or providing reasonable notice or reasonable compensation for shift cancellation, then the employee may be able to raise a personal grievance.

Personal grievances

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