Your rights: Help! I'm sick of working 12-hour days

Q. I have worked as a production manager from June 2001. My hours are officially 8am to 4.30pm but, due to work and management pressure, I often work 12 hours a day and some Saturdays.

Recently I stuck to my official hours and began noticing a change in attitude towards me. Now my production staff have told me that a person from management has been asking about my hours in the factory when I'm not there.

I saw my immediate boss and discussed with him the stress I am facing. His reply was that he has to change my working hours.

At the moment I feel like I will end up in a hospital with a nervous breakdown because of the stress I am suffering. What should I do?

A. Your question raises two issues, the first of which is an employer's ability to vary the terms of an employment agreement.

Your employer cannot unilaterally vary your terms of employment. Also, the Employment Relations Act 2000 (ERA) requires all individual employment agreements to indicate the times an employee is required to work.

So you should look at what your employment agreement says about your standard working hours and your employer's ability to vary them. If your employer does not have the right to vary your hours you have grounds for a disadvantage grievance.

An employer can sometimes alter the terms and conditions of employment for commercially justified reasons. In your case it may be that the employer is justified in moving your standard hours forward half an hour and that this is not a substantial alteration of your employment agreement.

The good faith provisions of the ERA require an employer to consult employees over any proposal that might affect their employment. So an employer who wishes to vary an employment agreement should consult employees and ask them to consent to any proposed changes.

Your employer will not be justified in giving you a written warning for questioning their decision to alter your hours.

The second issue is that of health and safety. Often employment agreements allow an employer to require employees to work extra hours to meet the reasonable demands of the position. But this does not mean that your employer can insist that you always work excessive hours.

You have said to your employer that you are stressed because of the long hours you have been working. Your employer must look into this issue under the Health and Safety in Employment Act 1992. If long hours cause you stress, your employer must take all practicable steps to minimise the likelihood of those hours harming you.

You also have a responsibility to take steps to ensure your own safety. So you should ask your employer to reduce your "12 hours a day and some Saturdays" to allow you time to recover. You may also need to ask for some time off work.

There is an implied duty in every employment agreement that the employer will provide a safe workplace. If your employer does not take steps to alleviate your concerns, or issues you with a written warning, seek the help of an employment lawyer, or ask the Labour Department for help. Its info line is (0800) 800 863. Its website website will help too.

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Q. I am employed in an engineering workshop. Anyone who makes a mistake on a job is told that they must stay behind after work and correct the mistake in their own time without being paid for it. Is he allowed to make us do this? We all have individual employment agreements that make no mention of this condition.

A. If you are a waged worker (paid on an hourly rate) your employer does not have the right to insist that you stay behind after normal work hours to correct mistakes. As a waged worker you should be paid for any overtime you are required to work. You will need to consult your employment agreement to see what your appropriate pay rate for working overtime is.

Your employer does have a right to monitor your performance and require you to meet the standard appropriate to the job you are employed to do. This monitoring should be carried out within the hours of work specified in your employment agreement. If you are a salaried worker, your employment agreement may require you to work any extra hours needed to do your job properly. In this case you would not be entitled to overtime.

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Q. Where a contract has been signed by a worker and clearly states the weekly hours one will be employed for, can the employer drop these hours down? For example, if the agreement states 40 hours a week, must I accept being rostered on for just 25?

A. Your employer may not reduce your contractual working hours without obtaining your agreement. The reduction of your working hours will constitute a material disadvantage to you in terms of the reduced pay you receive. You should ask your employer to reinstate your hours of work. If your employer refuses to do so you will have ground to raise a disadvantage grievance.

However, your employer is entitled to restructure their business after consulting with you over the changes. This could mean that your 40-hour per week position is no longer required. It will then be up to you whether or not you accept the new part-time 25-hour position or choose redundancy.

Employment relations Service

* Rick Hargreaves is a solicitor at Phillips Fox, specialising in employment law. Answers are of a general nature only and should not be substituted for specific legal advice.


Rick Hargreaves is a solicitor at Phillips Fox, specialising in employment law. Answers are of a general nature only and should not be substituted for specific legal advice.