Be sacked forces migrant to work unreasonable hours
Working reasonable hours is a right that most Australians know is protected by our employment laws. But if you’re a recent migrant to this country, you may not know what kinds of hours are reasonable, and some unscrupulous employers may take advantage. Being threatened with dismissal if you don’t work the bigger hours we get these calls daily. Be sacked forces migrant to work unreasonable hours is more relevant than ever before.
At A Whole New Approach, we see this all the time. There ever there are marginalized groups, there are employers that (thankfully a minority) that take advantage of employees. Migrants, people with mental illness or disabilities, low IQ, people out of prisons, young people, women trying to return to work after a long period away. Why do employers do this? Its called profit. This culture contributes to increasingly toxic workplaces, increased work cover claims, violence in the workplace and theft. In the longer term it benefits neither the employer or the employee
Leading wholesaler exploits African migrant in reasonable hours case
That’s what happened in a reasonable hours case heard by the Federal Court in May. The case concerned Sydney’s largest meat wholesaler, which forced a recent migrant to work a 50-hour week with 4am starts. In this article, we’ll look at the details of the case and how the Court came to a ruling. But to understand this case, we must first look at what actually constitutes reasonable hours as defined by Fair Work.
What are the maximum weekly hours of work?
The National Employment Standards (NES) outlined within the Fair Work Act 2009 are 11 minimum employment entitlements that must be provided to all employees. One of these entitlements outlines the maximum reasonable hours an employee can work.
The entitlement states that an employer can’t request or require a full-time employee to work more than 38 hours per week. For those employee’s who aren’t full-time, they must only work 38 hours per week or their ordinary hours of work in a week. Whichever is lesser. The weekly hours an employee works must be taken to include any hours of leave or absence (paid or unpaid) authorized by their employer, a term of their employment or by law.
If an employee is asked to work additional hours, they have the right to refuse if it’s considered unreasonable. Fair Work considers a number of factors to determine whether additional hours are reasonable hours or not. This includes whether it poses a risk to the employee’s health and safety. And the employee’s personal circumstances, to name just two. You can view the full list of factors on the Fair Work site.
Now, with this in mind, let’s look at the reasonable hours case of the meat worker.
“The job starts at 2am:” Ghanian migrant commences work at meat wholesaler
In March 2016, 24-year-old Ghanian Samuel Boateng migrated to Sydney with his mother and three siblings. Eager to find employment, the marketing science graduate sought advice from a member of the Ghanian community. This man, Nana Yaw, told Mr Boateng that there were jobs available at Dick Stone PTY LTD, where he was employed. A week later, Mr Yaw informed Mr Boateng that he could commence employment at Dick Stone the following Monday, saying that the “[t]he job starts at 2.00 am.”
On 21 March 2016, Mr Boateng turned up for his first day of work at Dick Stone in the Western Sydney suburb of Regents Park. Arriving at 1:45am with Mr Yaw, Mr Boateng was introduced to Peter Bertram, Mr Yaw’s supervisor. Critical to this reasonable hours case was that during this meeting, Mr Bertram didn’t mention any details about Mr Boateng’s employment. He failed to discuss terms, conditions, his expected hours nor pay. Mr Boateng was subsequently put to work that morning.
The employee is given a very suspect offer of employment
Returning to work the next day, Mr Boateng was handed an “employment form”. Which was an employment application for the position of “knife hand/laborer.” He was also given an “Employment Commencement Pack,” which included a letter of offer for the aforementioned position. Both these documents were dated 22 March 2016.
The letter of offer stated that Mr Boateng had commenced work the previous day. It also outlined the following “general conditions” regarding his hours of work:
- Hours: The ordinary work hours for a full-time week are 50 hours per week. Your ordinary work hours will initially be within the range 2 am to 11:30 am Monday to Friday, 2 am to 7 am Saturday. This may at some stage in the future need to be varied from this range due to business requirements.
- Additional Hours: There is the expectation that when requested by the Company employees shall work a reasonable amount of additional hours.
The letter of offer was, however, lacking several notable details that were key to this reasonable hours case. It didn’t outline how much Mr Boateng would be paid. It also didn’t outline any overtime entitlements, nor refer to the relevant Meat Industry Award 2010. Mr Boateng had at this stage only been in Australia for three weeks. He was therefore unaware of the obligations of employers and signed the offer of employment that night.
The long, unreasonable hours take a “damaging” toll on the employee
It wasn’t until Mr Boateng received his first pay slip that he found out how much he was being paid $20.70 per hour. He wasn’t given the opportunity to agree to this rate. Nor did he know if it included other entitlements or loading.
Mr Boateng would later testify to the Federal Court that he was never given a choice but to work 50 hours a week. He said that if he was given the opportunity to work 38 hours instead, he would have taken it. The long, unreasonable hours and egregiously early start time eventually took a toll on Mr Boateng. This was especially when his wife gave birth to their first child.
“I found 50 hours per week to be very difficult, particularly as I needed to get up at about midnight every day”. Stated Mr Boateng. “I found the long hours damaging on my relationship with my family and my wife.” “The long work hours, particularly only having one day a week off from work, was very difficult at the time I was married and with a newborn child.”
The Australasian Meat Industry Employees Union intervenes
In November 2017, the Australasian Meat Industry Employees Union contacted Dick Stone about a number of employee concerns. This included the underpayment of several Award entitlements, as well as unreasonable working hours and overtime performed. A back and forth of correspondence ensued between the two parties, before things went quiet.
In November 2018, the Union once again raised the issues with Dick Stone, proposing that they be resolved through the dispute resolution process outlined in the Award. Then in December, the Union informed Dick Stone that it would represent Mr Boateng in this process, at his request. In February 2019, the Union filed an application with the Fair Work Commission to deal with the dispute. However, because Dick Stone refused to agree to arbitration, this proceeding came to an end.
Mr Boateng was subsequently made redundant with three other employees in September 2019.
The employee’s unreasonable hours claim is considered by the Federal Court
It wasn’t until May 2022 that Mr Boateng’s case reconvened in the Federal Court. The key issue that it had to decide on was whether it was reasonable for Dick Stone to require or request Mr Boateng to work beyond the maximum 38 hours per week stipulated in the NES.
The Union submitted to the Court that Dick Stone’s requirement for Mr Boateng to work 50 hours per week wasn’t reasonable. Also, that he wasn’t paid his correct overtime or penalty entitlements. Dick Stone, meanwhile, argued that the 50 hours per week that Mr Boateng worked was in fact a term in his employment contract. It said that Mr Boateng had entered the contract on his own free will. The company also stated that Mr Boateng was paid a “blended rate” that included overtime. Hence he didn’t receive separate pay for the extra 12 hours per week.
Was the employee forced to work unreasonable hours? The Federal Court makes its decision.
Considering the evidence, Justice Anna Katzmann found that Mr Boateng’s employment contract was wanting in several regards. She found that it didn’t outline what Mr Boateng would be paid. Also, that it didn’t mention any entitlement to overtime or refer to the Award.
When it came to whether it was reasonable to require Mr Boateng to work extra hours, Justice Katzmann considered the reason provided by Dick Stone. The company argued that it had required extra hours in line with one of the reasons stated in the NES. Namely, “the needs of the workplace or enterprise”. Justice Katzmann found that while the 50-hour work week aligned with this reason, it didn’t necessarily mean the additional hours were reasonable for Mr Boateng.
Justice Katzmann found that:
- Mr Boateng was exposed to “obvious risks” associated with lengthy shifts in a job “requiring the use of knives and the lifting of heavy weights.”
- It was “unsurprising” that Mr Boateng didn’t attempt to negotiate his employment terms. As he had “recently arrived in Australia from a third-world country, needed employment, and was likely to be unfamiliar with Australian law.”
- According to the industry Award, the usual pattern of work in the meat industry “is to work from 4 am, not 2 am.”
Considering all these factors, Justice Katzmann ruled that Mr Boateng had indeed worked unreasonable hours. “On balance, . . . I am persuaded that it was unreasonable of Dick Stone to require or request [the worker] to work 12 hours a week every week over and above the 38 stipulated by the award and the Act,” Justice Katzmann concluded.
Conclusion to Be sacked forces migrant to work unreasonable hours
Have you been forced to work unreasonable hours?
Employment rights, Casual employee rights, workers rights are important, this is not a political statement, its how we all want to be treated. Employees are often expected to work overtime, and sometimes without being compensated for it. Or pressured to work extraordinary long shifts or continuous days. If that sounds like your situation, A Whole New Approach can help you take action against your employer. All adverse action claims, underpayments, been sacked, forced to resign over conditions or toxic workplace
Call us on 1800 333 666 for a free, confidential discussion.
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One of the nations leading workplace advisors, representatives and commentators. Gary has represented some 12,000 clients over some 20 plus years, published some 300 plus articles. He is passionate about employees rights and the test of fairness in the workplace. Have a problem, concern, wants to contribute to the debate or research, call him directly.