Beyond the bell: What are ‘reasonable additional hours’ for teachers?

The teaching profession often requires teachers to take on responsibilities beyond the classroom and outside of working hours, such as participating in community engagement, lesson planning, grading assessments and facilitating extracurricular activities. A recent survey has found that 80% of teachers say they have a less than ideal or non-existent work-life balance, with around 70% reporting they have unmanageable workloads.[1] As a result, teachers are frequently working above and beyond their contracted hours.

What are reasonable additional hours?

Under section 62(1) of the Fair Work Act 2009 (Cth) (FW Act), national system employers may request or require their employees to work additional hours in excess of their weekly ordinary hours, provided the additional hours are reasonable.[2] While an employer may request or require an employee to work additional hours, section 62(2) of the FW Act also provides employees the right to refuse the request or requirement to work additional hours, if the additional hours are unreasonable.[3]

Having regard to the inherent demands on teachers’ time due to their responsibilities, identifying reasonable or unreasonable additional hours is challenging. Employers and employees will have differing opinions on the reasonableness or unreasonableness of additional hours, with section 62(3) of the FW Act providing a list of factors to be relied upon in making a determination, with no single factor being determinative.

The factors used to determine if additional hours are reasonable or unreasonable are:[4]

1. whether the additional hours pose a risk to an employee’s health and safety;
2. the impact of the additional hours on an employee’s personal circumstances, including family responsibilities;
3. the requirements of an employee’s workplace or enterprise;
4. an employee’s entitlement to overtime payments, penalty rates or other compensation for, or whether they receive a level of remuneration that accounts for the expectation of working additional hours;
5. whether notice was provided by the employer of any request or requirement to work the additional hours;
6. whether notice was provided by an employee of their intention to refuse to work the additional hours;
7. the typical work patterns in the employee’s industry;
8. the nature of the employee’s role and their level of responsibility;
9. whether the additional hours comply with averaging terms in a modern award or enterprise agreement applicable to the employee, or with an averaging arrangement agreed upon by the employer and employee; and
10. any other relevant matter.

Cases dealing with additional hours

Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263

The leading case in relation to reasonable additional hours and application of the factors under section 62 of the FW Act is that of Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263 (AMIEU V Dick Stone).[5] In this case, an employee was provided with a written employment contract which required him to work 50 ‘ordinary work hours’ per week, from 2:00am to 11:30am on weekdays and 2:00am to 7:00am on Saturdays.[6]

After weighing up the factors in section 62(3) of the FW Act, the Court found in favour of the employee, determining that requirement to work an additional 12 hours a week was unreasonable.[7] In reaching their decision, Justice Katzmann identified safety risks, failure to pay overtime rates, the employee’s lack of seniority, and the unusual and ‘unsociable’ nature of the work hours contributed to the additional hours required of the employee being unreasonable.[8] This case highlights, that even if an employee’s contract requires that they work additional hours, consideration is given to other factors which can result in additional hours being unreasonable.

Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162

The topic of reasonable additional hours was recently revisited by the Federal Court in Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162,[9] in which a senior employee alleged their employer required him to complete 30 to 40 additional hours of work per week.[10] The employee in this case was ultimately unsuccessful as they failed to provide evidence substantiating their claim, however, this case provides insight into an inferred requirement to work additional hours.

Justice Raper in her decision noted the proper construction of section 62 of the FW Act relating to the interpretation of ‘requirement’,[11] clarifying that an employee may establish that they were required to work a certain number of hours if they can provide evidence of the impossibility of completing a directed task other than beyond working hours.[12]

Implications for teachers and schools

In the teaching profession, educators are rarely explicitly requested to work specific additional hours as was the case in AMIEU v Dick Stone.[13] The unique requirements of the teaching profession have led to questions of whether the additional hours spent marking, lesson planning, and report card writing in educators’ personal time, may be inferred to be ‘required’. The inferred requirement to work additional hours, may leave schools vulnerable to claims from teachers in relation to underpayment of wages, if there is insufficient compensation.

While there may be inferred requirements to work additional hours to ensure work is completed, teachers may exercise their right to refuse unreasonable additional hours, giving consideration to the factors under section 62(3) of the FW Act.

Conclusion

Given the increased scrutiny of the job demands of teaching, it is prudent for schools to anticipate potential claims that may be brought by their employees. It is important that schools review their policies, contracts of employment and operations to assess the additional hours being performed by teachers are reasonable or unreasonable.

Gadens can assist with drafting and reviewing contracts and workplace policies to ensure employers are complying with the FW Act.

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Authored by:
Jonathon Hadley, Partner
Liam Elliott, Lawyer
Alexander Greig, Paralegal

[1] Black Dog Institute, Teacher mental health and burnout could halve workforce, new data by Black Dog Institute (Media Release, 25 February 2023).

[2] Fair Work Act 2009 (Cth) s 62(1).

[3] Ibid s 62(2).

[4] Ibid s 62(3).

[5] Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263.

[6] Ibid [41]-[42].

[7] Ibid [68]-[70].

[8] Ibid [64]-[67].

[9] Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162.

[10] Ibid [357].

[11] Ibid [336].

[12] Dorsch v HEAD Oceania Pty Ltd [2024] FCA 162.

[13] Australasian Meat Industry Employees Union v Dick Stone Pty Ltd (No 2) [2022] FCA 1263.