Document ID: chunk:federal_register_of_legislation:C2007C00183:clause:1_91c:p1
Version: federal_register_of_legislation:C2007C00183
Segment Type: clause
Provision Reference: sch 1 cl 91C (pt 1/2)
Character Range: 154545–157228

91C  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.

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

 (5) 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