In a 2022 case, Aldi was stung with an $80,000 fine for failing to pay workers for certain pre-shift tasks they were required to perform before the commencement of their shift. Aldi was also ordered to pay the relevant employees compensation. Many diligent employees arrive at work a bit before the start of their shift so they can start on time, but when does being required to be at work before your shift starts tip over into unpaid work?

As a full-time employee, the maximum number of hours an employer can ask you to work is 38 hours per week, unless there is an award or enterprise agreement applicable to your employment that specifies different hours. However, ‘reasonable overtime’ has been the subject of media attention in recent months. So what are your rights when your employer asks you to work over the 38 hour weekly maximum?

Pre-shift work

For pre-shift work, this generally comes down to whether you are required by your employer to be at work before your shift starts, or whether it is your choice to arrive early and get a head start. You can also be asked to arrive ahead of your shift to ensure you can start your shift on time – the question is whether you can be asked to ‘work’ before your shift starts without payment.

If your employer requires you to arrive early and engage in work-related tasks, this time must be paid. An employer might either expressly require you to be at work, or do so impliedly – for example in the Aldi case, the Federal Circuit Court found that there was a ‘clear implied direction’ that employees had to arrive early to perform certain ‘pre-shift’ tasks – including undertaking safety checks on ‘stock pickers’ (a vehicle similar to a forklift), driving the picker to a central location, collecting a communication device and completing a sign in sheet – to avoid disciplinary action being taken against them. The Court found that these pre-shift tasks constituted ‘work’ that was required to be performed as the tasks were ‘solely to the benefit of the employer’ with ‘no personal benefit to the employee’, and therefore should be paid.

Overtime or ‘reasonable additional hours’

Under both the relevant Western Australian and Commonwealth legislation, an employee has the right to refuse to work unreasonable additional hours (ie, hours over and above the 38 hours per week). While there is no general legal rule as to what constitutes reasonable additional hours, there are a number of relevant factors including:

• Any risk to the health and safety of the employee from working the additional hours;
• The employee’s personal circumstances including family responsibilities;
• The needs of the workplace;
• Whether the overtime is paid or the employee is otherwise compensated for it;
• The usual patterns of work in the industry; and
• The nature of the employee’s role and level of responsibility.

In another 2022 case, for example, the Federal Court applied these factors and found that a requirement to work 50 hours per week as a knife hand for a butcher was unreasonable. This decision was based on the fact that the worker was being underpaid, the hours of work were ‘unsociable’ (2am to 11:30am Monday to Friday and 2am to 7am on Saturdays) particularly given the worker had a young family, there was a risk to the employee’s health and safety given the likelihood of fatigue and associated increased risk of workplace accidents, and the worker was not in a managerial role.

Conclusion

As a general rule of thumb, you need to be paid for the work you perform. However, if you choose to arrive at work early to get ahead, rather than being required to do so, that may not be considered ‘work’ for which you need to be paid. In terms of full-time employees, you can be asked to work reasonable additional hours – this is not assessed in a vacuum but by reference to the particular workplace, industry norms and an employee’s personal circumstances.

Ultimately, if you think your employer is doing the wrong thing, contact either Wageline (for state system workers in Western Australia) or the Fair Work Ombudsman (for national system workers), or a community legal centre like Circle Green for advice.

Note that the content of this blog does not apply in all jurisdictions, does not constitute legal advice, and should not be relied upon. You should seek legal advice in relation to any particular matters you may have. All opinions expressed are our own, not necessarily those of any organisations with which we are connected.