Forty-Hour Week Convention, 1935 (No. 47) - Australia (Ratification: 1970)

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 1 of the Convention. Overtime work. The Committee notes the Government’s comprehensive report and in particular the enactment of the Fair Work Act 2009 and the Fair Work Regulation 2009. More specifically, the Committee notes that section 62 of the Fair Work Act states that the average weekly hours for a full-time employee must not exceed 38 hours. Additional hours worked must be reasonable according to the criteria set out in section 62(3). For their calculation, section 63 permits the averaging of normal working hours over a period of no more than 26 weeks, as indicated in section 64. The Act explicitly states the various factors that determine whether additional hours are reasonable, but it does not specify a limit to overtime hours. In this regard, the Committee has taken note of the observations provided by the Australian Council of Trade Unions (ACTU), in which it expressed concern regarding the concept of “reasonable” additional hours, which may give significant discretion to employers to control the average working hours. In this respect, the Committee refers to paragraph 79 of its General Survey of 1984 on working time in which it underlined that undue facilitation of overtime, for example, by not limiting the circumstances in which it may be permitted or by allowing relatively high maximums, could in the most egregious cases tend to defeat the objective of Recommendation No. 116 of a social standard of a 40-hour week and make irrelevant the provisions as to normal working hours. The Committee requests the Government to provide any observation it may wish to make in reply to the concerns raised by the ACTU as well as to supply further information regarding how the limits of overtime hours are applied in practice.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1 of the Convention. Forty-hour week. The Committee notes the legislative changes over the past five years that have introduced the statutory standard working week of 38 hours at the Commonwealth level. More concretely, under the Workplace Relations Act, as amended in 2005, and the Australian Fair Pay and Conditions Standard of 2006, an employee cannot be requested to work more than 38 hours per week, plus reasonable additional hours. However, work in excess of 40 hours on a regular basis is permitted when an employer and an employee agree to average hours of work over a period of up to 12 months. The new National Employment Standards (NES), which are expected to take effect on 1 January 2010 as part of the Government’s proposed workplace relations reform, continue to provide for a maximum working week not to exceed 38 hours plus reasonable additional hours but permit modern awards to include provisions allowing for the averaging of hours of work over a specified period. In addition, the Committee notes recent developments in Victoria, such as the new clause which allows an employee to refuse to work overtime that would involve working hours which are unreasonable in terms of health and safety or family responsibilities. It also notes the new legislation aimed at protecting disadvantaged workers, especially construction workers and outworkers in the clothing industry who do not enjoy any protection with respect to working hours and who are not entitled to overtime pay. The Committee further notes the Fair Work Act 1994 of South Australia, which came into effect in 2005, and the Declaration of Remuneration Minimum Standard, adopted in 2006, under section 69 of the Fair Work Act, which set the ordinary weekly hours at 38 hours per week (that may be averaged over four consecutive weeks).

Overtime work. While noting these developments, the Committee observes that the Commonwealth and the state legislation do not expressly define the circumstances under which overtime work is authorized (for instance, in case of abnormal pressure of work or specified seasonal activities) nor do they specify any maximum limit to permissible overtime hours. In this connection, the Committee wishes to refer to Paragraph 14 of the Reduction of Hours of Work Recommendation, 1962 (No. 116), designed to facilitate the implementation of the Convention, which envisages exceptions of three kinds (permanent, temporary, periodical) to the normal hours of work and provides that the competent authorities in each country should determine the circumstances and limits of such exceptions. In addition, Paragraph 17 of the same Recommendation suggests that except for cases of force majeure, limits to the total number of hours of overtime which can be worked during a specified period should be determined by the competent authority or body. The Committee further refers to paragraph 79 of its General Survey of 1984 on working time in which it noted that undue facilitation of overtime, for example, by not limiting the circumstances in which it may be permitted or by allowing relatively high maximums, could in the most egregious cases tend to defeat the Recommendation’s objective of a social standard of a 40-hour week and make irrelevant the provisions as to normal working hours. In the light of the preceding indications, the Committee requests the Government to supply more detailed information on the conditions under which, and the limits within which, overtime is permitted.

Averaging of hours of work. Moreover, the Committee notes that, under the Workplace Relations Act, as amended, and the Australian Fair Pay and Conditions Standard, the averaging of working hours over a reference period of up to 12 months seems allowed without any limitation (by comparison, the new National Employment Standards do not specify the maximum duration of the reference period). The Committee wishes to recall, in this respect, Paragraph 12(1) of Recommendation No. 116, which indicates that the variable distribution of working hours over a period longer than one week should be permitted only when special conditions in certain branches of activity or technical needs justify it. Besides, the Committee considers that a general reference period of one year for the averaging of hours of work appears to be too long to guarantee full application of the principle of a 40-hour week as embodied in the Convention and tends to contradict the essence of progressive reduction of hours of work. It also considers that over-permissive regulations on overtime and flexible working arrangements, such as the averaging of hours of work, may eventually result in the statutory standard working week being the exception rather than the rule. It is indicative, in this regard, that according to 2006 statistics on hours of work in Queensland, 15.6 per cent of persons declared to usually work from 41 to 48 hours per week while another 15.4 per cent usually work 49 hours or more. The Committee would appreciate if the Government would provide additional explanations in this respect.

Part V of the report form. Application in practice. The Committee notes the statistical information on hours of work contained in the Government’s report. The Committee would be grateful if the Government would continue to provide up to date information on the practical application of the Convention, including, for instance, extracts from labour inspection reports showing the number and nature of contraventions reported with regard to hours worked in excess of the 40-hour week; statistics concerning the categories and numbers of workers to whom the principle of the 40-hour week has been applied and the number of hours worked in excess of the 40-hour week; the categories and numbers of workers to whom the principle of the 40-hour week has not as yet been applied and the normal hours of work applicable to these workers; official studies or reports on working time issues and especially the question of the reduction of hours of work in relation to factors such as the effect of new technologies and employment policy objectives; trends on working time arrangements as reflected in recent awards, collective agreements, etc.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 1 of the Convention. Forty-hour week. The Committee notes the comments of the Australian Council of Trade Unions (ACTU) dated 1 September 2008 on the application of the Convention. According to these comments, excessively long working hours are causing numerous problems for workers. Based on three different sources of information, the ACTU maintains that Australian workers increasingly work in excess of the statutory limit of 38 hours per week. First, according to data published by the Australian Bureau of Statistics (ABS) in 2007, the male average full-time working week was 45 hours and the female average full-time working week was 42 hours. In addition, the Australian Work and Life Index 2008, based on survey research undertaken by academics at the University of South Australia, reported that 22.5 per cent of respondents worked 48 hours or more, including 31.7 per cent of male respondents and 11.9 per cent of female respondents. Finally, a survey conducted in 2007 by the Workplace Research Centre of the University of Sydney, found that 39 per cent of workers were working longer than standard hours while 23 per cent of workers were working for 50 hours or more a week. The Committee requests the Government to transmit any comments it may wish to make in response to the observations of the ACTU.

The Committee is raising other matters in a request addressed directly to the Government.