The Federal Court of Australia has found that a meat wholesaler employed a migrant on a 50-hour week basis under unlawful conditions.

In 2016, a marketing science graduate from Ghana was offered a knife hand and labourer role during an initial job interview.

The employee was given an ‘employment form’ and an ‘employment commencement pack’, which stated the graduate’s ordinary hours were 50 hours per week. However, the information failed to provide the employee’s rate of pay, any entitlement to overtime and didn’t refer to the applicable award.

Having no knowledge of Australian employment law and rights, the employee started working from 2am to 11:30am Monday to Friday, and 2am to 7am on Saturdays. The employee found working extreme hours six days per week and early mornings to be exhausting.

After recognising the issue, the Australasian Meat Industry Employees Union (AMIEU) notified the company that it would represent the employee in an underpayment dispute.

The employer argued that whilst the worker did not receive overtime rates for any time worked over 38 hours, the business paid him a ‘blended’ rate incorporating overtime. This was based on external professional advice from an employment and industrial relations consultancy firm.

The company failed to provide sufficient evidence to prove that the employee’s ordinary hours were from 4am to 11:30am, and that the hours worked from 2am to 4am represented overtime. The employee was never informed of such details.

Decision

The Federal Court of Australia held that the employer clearly contravened section 62 of the Fair Work Act 2009 (Cth), which prohibits employers from requiring employees to work more than 38 hours per week unless the additional hours are deemed ‘reasonable’. The court determined that the company had also breached other provisions of the Act, as well as several Award clauses.

While a 50-hour week arguably aligned with the business’ needs, the additional hours worked by this employee were unreasonable. This is primarily due to obvious health and safety risks involved with lengthy shifts within this industry, no supervisory responsibilities, and the usual pattern of work in this industry is from 4am, not 2am.

Evidently, the migrant did not question terms of the role as he had recently arrived in Australia, required an income and was unfamiliar with Australian employment law. The employer additionally failed to provide the employee with a copy of the Fair Work Information Statement.

As set out by the award and the Fair Work Act 2009 (Cth), it was unreasonable of the employer to require the employee to work 12-hour shifts and more than 38 hours per week.

Learnings for Business

This case highlights the importance for businesses to lawfully act in a fair and reasonable manner towards their employees, as per the Fair Work Act 2009 (Cth).

Businesses face the risk of penalties for breaches of legal obligations, as well as potential compensation to workers for underpaid entitlements.

It is also not possible for employees to ‘contract out’ of reasonable minimum entitlements, even if both parties agree. It is important to monitor and ensure employees are working reasonable hours, under appropriate conditions.

How the Victorian Chamber can help

Before you take any action, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222 to discuss your obligations. Our experienced Workplace Relations Consultants can also assist you with guidance in managing employees and navigating your obligations as an employer.

Wages and entitlements

Is your business paying its employees correctly? When it comes to wages, awards and entitlements, ensure that your business complies with the law with professional support from our Workplace Relations Advice Line and consultants.

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