Login
Rugg v Ryan would have been a ‘game changer’
Sally Rugg recently agreed to settle her case based on being made to work “unreasonable” hours against Kooyong’s independent MP. Here, several workplace relations lawyers discuss how the opportunity was missed for establishing a definition of “reasonable” work hours under the Fair Work Act.
Jess Feyder
On 8 May, Sally Rugg accepted $100,000 to settle her workplace dispute with independent MP Monique Ryan.
Ms Rugg launched the federal court case in January, alleging that she was required to work “unreasonable additional hours”, which she claimed breached the Fair Work Act.
This case brought the issue of what additional work hours are considered “reasonable” to the fore.
In early March, Lawyers Weekly spoke with several partners to understand how this question could be answered under the Fair Work Act and its relevance to the legal profession — a profession that often requires additional out-of-work hours across the board.
The past months have seen growing interest in the topics of increasing pressure for lawyers to work out of hours, the right that lawyers, and all workers, should have to disconnect from work, and the growing popularity of the idea of a four-day working week.
The question of reasonable working hours is increasingly coming under the microscope.
Lawyers Weekly spoke to several workplace relations lawyers to understand the significance of the Rugg v Ryan case and any learnings to take from it.
Karena Nicholls, partner at Coutts Lawyers & Conveyancers, commented: “More than ever, there is a focus on what are reasonable hours over and above 38 hours.”
“This case was a game changer if it had run to provide clarity around what is reasonable.”
“What would have been determined was whether a 70-hour work week was lawful under the Fair Work Act,” she explained.
“The key to this [issue] is looking at patterns and the nature of the role and responsibility.
“Some roles require you to work more hours to meet deadlines set by agencies, courts and tribunals.”
“There are some changes around awards as to hours, the industry plays a huge part in the hours needed to perform the role.
“It should not be the norm to work huge hours, but some roles simply are that way due to the nature of the work; these roles should be paid accordingly, and job expectations clearly set when the role is offered,” explained Ms Nicholls.
Michaela Moloney, partner at K&L Gates, also commented: “With the litigation settling, there will be no authoritative statement on the law relating to reasonable hours.
“However, the case is a timely reminder for employers about the requirement for additional hours worked by employees to be reasonable.”
“While a person’s remuneration is a factor that can be taken into account when determining whether additional hours are reasonable, merely paying someone additional pay won’t automatically make excessive hours reasonable,” explained Ms Moloney.
“Employers should be monitoring the hours worked by their employees and taking proactive steps when they identify that employees are clearly working significant hours, including late nights and weekends.”
Ashley Borg, special counsel at Adero Law, and Harry Wagner, law graduate at Adero Law, also spoke to Lawyers Weekly about the issue.
“The excessive hours worked by so many political, legal, financial, and medical professionals rarely surface into the public arena without a torrid affair or scandal to momentarily shine a light on the pressure of modern workplaces.
“It’s important that when a high-profile case like Ms Rugg’s grabs the public’s attention ever so briefly, employers take notice,” stated Mr Borg and Mr Wagner.
“While Ms Rugg settling her claim with Dr Ryan and the Commonwealth has avoided litigation costs, we have missed out on an opportunity for the Federal Court to put employers on notice that their obligations under law will not be overlooked.”
“Section 62 of the Fair Work Act allows an employee to refuse to work ‘unreasonable additional hours’.
“The provision contains a number of circumstances the court must consider to determine what constitutes reasonableness, but there is a dearth of case law on the matter,” noted Mr Borg and Mr Wagner.
“How then can an employee in an industry where excessive hours are the ‘norm’ — not the exception — tell their employer, ‘enough’?
“The Fair Work Act considers the pay for a role to be a factor in justifying long hours, but is there a sensible limit on hours that a person can work in a day?”
“These questions highlight the need for case law that puts legislative protections against excessive hours to better use,” they stated.
