NES: Maximum Weekly Hours

Looking for some clarification on below questions:

1. NES 'Maximum Weekly Hours' - relates to ordinary hours for a full time employee - where it is a maximum of generally 38. This means anything above this is overtime?
2. Does this mean employers are obliged to provide a guarantee of 38 hours for a FTE?
3. If yes - what about in cases where a FTE cannot be usefully employed i.e. in transport where fatigue regulations allow only a certain ammount of driving hours per fortnight, and it is reached in the first week, allowing only less then 38 hours being able to be worked the next week
4. Please consider the above based on a NES based contract, with no EA in place with stipulations assisting with the above and clarity

First time poster :) Hopefully this forum is helpful!

1. Generally yes, including reasonable additional hours. (Although, consider for example the CEO of a business on $200Kpa, who works more than 9 to 5, they wouldn't lodge OT.)
2. Yes - are at least pay 38 if there isn't work to be provided.
3. Most Awards haves clause about averaging the hours over number of weeks - so that 152 hrs in a four week period is ok. EG: You might work 53.2 hours in week 1 and 22.8 hours in week two. Admittedly, I'm not familiar with Transport Regs, so I'm not sure if 53.2 hours in a week are ok. And also, I know you mention in item 4 to only consider NES so my answer might not help.
Sure the MA000038 Award would apply?
Are the Transport Fatigue Regs any help? Do they reference any examples?

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Originally Posted by bullswool

1. Generally yes, including reasonable additional hours. (Although, consider for example the CEO of a business on $200Kpa, who works more than 9 to 5, they wouldn't lodge OT.)
2. Yes - are at least pay 38 if there isn't work to be provided.
3. Most Awards haves clause about averaging the hours over number of weeks - so that 152 hrs in a four week period is ok. EG: You might work 53.2 hours in week 1 and 22.8 hours in week two. Admittedly, I'm not familiar with Transport Regs, so I'm not sure if 53.2 hours in a week are ok. And also, I know you mention in item 4 to only consider NES so my answer might not help.
Sure the MA000038 Award would apply?
Are the Transport Fatigue Regs any help? Do they reference any examples?

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Not sure I 'get' this question. But following above response, yes, 38 is max hours and all awards are explicit and provide good info on this. What often gets lost in the mix is wages employees are paid by the hour and salaried employees are paid to do the job and if that takes longer, then employers need to look at efficiency standards for the general run of the mill employees. Wages employees can of course be paid a salary as long as there are explicit offset clauses in the employment contract which clearly state just what the additional pay is for - cost benefit analyses need to be pretty accurate here so employee is never worse off - alternative being, to pay a base and pay all the add ons ie overtime if hours exceed 38.
The senior executives being paid the triple digit salaries are obviously paid to do the job and, frankly, work hours generally don't come into it - they are there to do the job and are paid very well to do so plus have the perks as well.
I too am not that cogent with the two Transport Industry awards either the Road Transport and Distribution or the Long haul Road Transport Award. But as suggested by Bullswool, the Long Haul regs do need to be followed. God knows none of us want to see more truck accidents caused by drivers on drugs taken to stay awake due to their long hours they are expected to work by irresponsble companies.
If this is the main area of concern, then I would suggest getting very familiar with just what the WH&S rules around driver fatigue are and sticking to that, no matter what - safety is paramount. If overtime is allowable then obviously it is paid.
Not sure this has helped but check out Long Haul Award - there is an alphabetical listing of the modern awards on the Fair Work website - and become a pro on the safety issue of driver fatigue.
Tiger

Thank you all for your helpful answers!

I think the main point of contention (apologies for over complicating the question), is :

1. Does the NES obligate us to guarantee 38 hours PW for a FTE (waged)?

2. If so, at what point will other factors override this, i.e. safety legislation not allowing employees to work 38 hours in a week i.e. if they can only work 30 due to these regulations, are we still obliged to pay 38?

Thanks

EDIT
Thanks Tiger, I just read your post again and believe in relation to point 2, WHS/OHS regs will override most?

Yes. If a full time job, then max ordinary hours are 38. However, if the hours are less than 38 p.w., then the role is part time. Be mindful however that with a part time role, the employment contract must state total hours + the start and finish times and each day of the week to be worked - that is mandatory. Thus any hours worked in excess of those stated part time hours, must be paid at overtime rates. If employers can't guarantee a certain number of hours or regularity, then I advise the role should be casual. A part time employee works regular and fixed hours, a casual employee works irregular and unsystematic hours with no guarantees of work. Trust this helps
Tiger

Hi BDHR, I broadly agree with Bullswool's and Tiger's information. However, since your questions are specifically about the NES, I'd like to offer the following clarification:

NO, the NES does not obligate us to guarantee 38 hours PW for a FTE (waged) employee.

This is because

1. The NES does not define Full-time or Part-time (or casual). What the NES does state in regard to hours of work is that
   Maximum Weekly Hours = 38 hours plus reasonable additional hours. Section 62 then goes on to list a number of factors that should be taken into account in determining whether additional hours are reasonable, including (a) any risk to employee health and safety [...] and (d) whether the employee is entitled to receive overtime payments, [...] or other compensation [...].
   
2. Any Award or Agreement that applies to a person's employment will generally define "full-time" hours, and the way in which payment for overtime hours is applied. In almost every Modern Award, full-time hours means 38 ordinary hours per week (on average). But the definition of "full-time" can vary from one workplace to another - I used to work in a place where 37.5 hours per week was regarded as "full-time". And in the Australian Public Service Award, full time means 36.75 hours per week.

To directly address some of your questions:

• The NES does not require payment for 38 hours per week
• An employment contract may engage a worker for a specific number of hours per week. Alternatively, if an employee is simply engaged as "full-time", then a relevant Award or Agreement (if there is one) will define how many hours per week that means, and whether the hours can be averaged over more than one week.
• Maximum hours of duty in a week, or on an individual day, are subject to both the NES limits on hours and WHS obligations. In some industries, such as transport, fatigue management rules will be very important and may be the deciding factor in rostering the hours of individual workers.
• If an employee is engaged for a particular number of hours as a full-time or part-time worker then they are entitled to be paid for that number of hours. "Averaging" of hours allowed under an Award/Agreement/Contract may help to match the actual hours worked to the pay obligations.

Cheers,
Greg

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Originally Posted by Greg Schmidt

Hi BDHR, I broadly agree with Bullswool's and Tiger's information. However, since your questions are specifically about the NES, I'd like to offer the following clarification:

NO, the NES does not obligate us to guarantee 38 hours PW for a FTE (waged) employee.

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Agreed - But to simplify the above, read the NES specifically, Section 62(1) that simply reads "An employer must not request or require an employee to work more than the following number of hours in a week.... (a) for a full time - 38 hours."

Note it states "more than"

And a modern award, enterprise agreement and contract of employment can specify any number up to this amount. There are quite a number of modern awards that have full time employees base hrs being say 35 or 36 hours, and this also contemplates the common workplace arrangement of a 9 to 5 worker taking a 30 minute meal break only works a 37.5 hr week not 38....and further, why annual leave and personal leave removed hours of accrual and made them week of leave, so to remove calculation difficulties with full time hours or part time hour variations in these systems . it is simply a week off for leave as an example and not a specific number of hours per the NES.

Hope these explanations help.