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What constitutes ‘reasonable’ additional work hours?
With a current MP drawn into a legal battle by a former employee, two workplace relations lawyers discuss what constitutes reasonable working hours in the eyes of the law, and specifically for lawyers.
Jess Feyder
The question of what additional work hours are considered “reasonable” is under the microscope in the legal battle between “teal” independent member for Kooyong, Dr Monique Ryan and her chief of staff, Sally Rugg.
Lawyers Weekly spoke with Elizabeth Aitken, partner and national head of workplace relations and safety at SLF Lawyers, and Joel Zyngier, principal and accredited specialist in workplace relations at Gilchrist Connell, to understand what should constitute reasonableness and how this should be applied in law firms.
“The Fair Work Act 2009 (Act) is clear that 38 hours per week are considered to be ‘ordinary hours’ — anything beyond can be refused by an employee on the basis that it’s unreasonable,” Ms Aitken commented.
“The question of reasonableness has been recently tested by the Federal Court,” she elaborated. “In this case, an employee was considered to be working ‘unreasonable’ hours, when he was contracted to work 50 hours per week plus reasonable additional hours.”
“In determining whether hours of work are reasonable, a range of factors will be considered, including the employee’s health and safety; appropriate compensation in return for those hours of work, either by way of annualised salary or overtime and penalty rates; the employee’s personal circumstances; and industry patterns of work,” explained Ms Aitken.
It is also true that the Act permits employers to require employees to work reasonable additional hours, noted Mr Zyngier.
Mr Zyngier noted other factors that will be considered as to whether hours are reasonable for the purposes of the Act. These include: the employee’s personal circumstances (including family responsibilities); the employer’s needs; notice of the need to work the additional hours; the nature of the employee’s role and level of responsibility; and the usual patterns of work in the industry.
What about law firms?
“Law firms, like any other employer, are required to consider foremost whether their staff are working in a manner which is sustainable for their health and wellbeing,” stated Ms Aitken.
“Excessive or unreasonable hours are not only potentially unlawful and harmful to staff members, but they typically don’t result in positive client outcomes.”
“Burnt-out lawyers are generally not their most productive, creative or effective,” she continued. “There’s consequently a business case beyond health and safety for law firms to make sure that hours are sustainable and reasonable.”
Mr Zyngier commented: “We know long hours are common in the legal industry, and for many lawyers, long hours are just part of the job. However, law firms are no different to any other employer.”
“Law firms should not require employees to work unreasonable additional hours above 38 hours a week and should respect an employee’s right to refuse to do so.
“That said, there will often be considerations which mean it is reasonable for a firm to require employees to work additional hours — sometimes significantly greater than 38 hours a week — to meet the business’ needs.”
“Within a law firm, ‘reasonable additional hours’ will vary from time to time due to the demands of courts and clients and often according to seniority of practitioners,” Mr Zyngier said.
“For example, during a trial or a major commercial deal, legal and support staff may be expected to work significantly more than 38 hours a week.
“Of course, they should be remunerated accordingly and given adequate notice of the need to work those hours. These considerations may be variously dealt with in employment agreements, policies and/or communications to employees prior to peak times.”
“However, even during peak times and even for highly paid staff, nobody should be required to work in a manner [that] jeopardises their health and safety, including the safety hazard of fatigue,” stated Mr Zyngier.
“This came to the fore a few years ago, when WorkSafe Victoria investigated certain law firms in relation to complaints of employees working unsafe hours.
“Firms should ensure they take reasonably practicable steps to eliminate, or if this is not possible, reduce the risk to health and safety arising from employees or partners working long hours, even during peak times.”
“First, consider the factors set out in the Act as to when additional hours of work will be reasonable; apply the considerations for each employee; if necessary, have a conversation with employees about the considerations and make any necessary adjustments to working hours or remuneration; and finally, document the conclusion in writing.”
