WORKPLACE RELATIONS ACT 1996 - SECT 226 The guarantee
This legislation has been repealed.
WORKPLACE RELATIONS ACT 1996 - SECT 226
The guarantee(1) An employee must not be required or requested by an employer to work more than:
(a) either:
(i) 38 hours per week; or
(ii) subject to subsection (3), if the employee and the employer agree in writing that the employee's hours of work are to be averaged over a specified averaging period that is no longer than 12 months--an average of 38 hours per week over that averaging period; and
(b) reasonable additional hours.
Note 1: An employee and an employer may agree that the employee is to work less than 38 hours per week, or less than an average of 38 hours per week over the employee's averaging period.
Note 2: A requirement for an employee to work a particular number of hours may come, for example, from an award or a workplace agreement.
(1A) An employer only contravenes subsection (1) if the employer requests or requires an employee to work more than the hours mentioned in subsection (1), and the employee works those hours.
Calculating the number of hours worked
(2) For the purposes of paragraph (1)(a), in calculating the number of hours that an employee has worked in a particular week, or the average number of hours that an employee has worked per week over an averaging period, the hours worked by the employee are taken to include any hours of authorised leave taken by the employee during the week, or during that period.
Start of averaging period
(3) For the purpose of subparagraph (1)(a)(ii), if an employee starts to work for an employer after the start of a particular averaging period that applies to the employee, that averaging period is taken, in relation to the employee, not to include the period before the employee started to work for the employer.
Reasonable additional hours
(4) For the purposes of paragraph (1)(b), in determining whether additional hours that an employee is required or requested by an employer to work are reasonable additional hours, all relevant factors must be taken into account. Those factors may include, but are not limited to, the following:
(a) any risk to the employee's health and safety that might reasonably be expected to arise if the employee worked the additional hours;
(b) the employee's personal circumstances (including family responsibilities);
(c) the operational requirements of the workplace, or enterprise, in relation to which the employee is required or requested to work the additional hours;
(d) any notice given by the employer of the requirement or request that the employee work the additional hours;
(e) any notice given by the employee of the employee's intention to refuse to work the additional hours;
(f) whether any of the additional hours are on a public holiday;
(g) the employee's hours of work over the 4 weeks ending immediately before the employee is required or requested to work the additional hours.
Note: An employee and an employer may agree that the employee may take breaks during any additional hours worked by the employee.
Definition
(5) In this section:
(a) a day declared by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of that State or Territory, as a public holiday by people who work in that State, Territory or region, other than:
(i) a union picnic day; or
(ii) a day, or kind of day, that is excluded by regulations made for the purposes of this paragraph from counting as a public holiday; or
(b) a day that, under (or in accordance with a procedure under) a law of a State or Territory, or an award or workplace agreement, is substituted for a day referred to in paragraph (a).