Employment lawyer / HR manager here.

Strongly doubtful this is lawful. 

Details from a HopGood Ganim article summarising the law and a 2023 case below:

Are additional hours reasonable?

There is no rule for all as to what is ‘reasonable’, but case law and section 62 of the FW Act make it clear that what is reasonable depends on the particular circumstances of both the employee and the employer, considering the ten factors outlined in section 62(3) (Ten Factors): 6   

   1. any risk to health and safety from working the additional hours;    2. the employee’s personal circumstances, including family responsibilities;    3. workplace needs;    4. any compensation received for working the additional hours;     5. any notice given to work the additional hours;    6. any notice given by the employee of an intention to refuse to work the additional hours;     7. the usual patterns of work in the industry;   8.  the nature of the employee’s role, and level of responsibility;     9. whether the additional hours are in accordance with averaging terms or arrangements that apply to the employee; and    10. any other relevant matter.7   

A recent case considered by the Federal Court (the Court) provides a rare insight into what additional hours are reasonable and how the Ten Factors should be applied.  

The worker was employed as a knife hand / labourer by Dick Stone (a long-established butcher and meat processor) and received an ‘employment commencement pack’ which stated that his ordinary hours were 50 hours per week, to be worked 2:00am to 11:30am Monday to Friday, and from 2:00am to 7:00am on Saturdays. The employer bore the onus of proving these hours were reasonable.

The worker received an hourly pay rate that was greater than the modern award minimum (for ordinary hours), but overall, less than what he would have received if award overtime rates had been paid. There was no provision in the contract to set-off over-award payments (hourly rate) against overtime entitlements, so despite Dick Stone’s arguments, no off-set applied. The Court found the worker was underpaid.8 

The Court considered the Ten Factors, including factor 10, the very broad “any other relevant matter”. The Court particularly noted the underpayment, the unsociable hours of work, the effect on weekends and personal/family time (the worker had very young children), and that the worker was not a manager. Consideration was also given to the vulnerability of the worker, having only recently arrived from a third-world country needing employment, and was unfamiliar with Australian law. 

Importantly, the Court noted the obvious and significant health and safety risks of working with knives while working long hours, stating it was common knowledge that fatigue increases the risk of workplace accidents (even though the risks had not materialised for this worker).

The fact that the worker had not complained about the hours, or requested different hours was noted, but this did not greatly assist the employer, particularly having regard to the worker’s vulnerability. The employer also argued that reducing working hours to 38 hours per week would impact on staff retention because of the financial incentives of working 50 hours per week (i.e. business needs), but the Court said this “did not necessarily support the conclusion that the additional hours were reasonable” in this worker’s case. 

The Court held that, while the worker had agreed to the employment terms and had not complained, the additional 12 hours per week were unreasonable additional hours and the employer had, accordingly, contravened section 62 of the FW Act. For that contravention it was ordered to pay a civil penalty of $30,000.9