1. The Defendant Fifteen50 Consulting Pty Ltd (F50) operates an environmental advisory and engineering consulting firm with offices in Echuca and Melbourne. From October 2022, the Plaintiff Mr Ihalagamage (Ihalagamage) was employed by F50 as a Senior Project Manager.
2. Ihalagamage's employment contract (Contract) required him to work 38 ordinary hours per week, along with reasonable additional hours without any additional payment. The Contract provided that his usual place of work was in Melbourne, but that he could be required by F50 to work at a different location.
3. From 15 April 2024, F50 assigned Ihalagamage to work 40 hours per week for Coliban Water (CW) for a six month period (the Assignment). Between that date and 2 August 2024, this required Ihalagamage to work some days each week at the Bendigo Wastewater Treatment Plant (Bendigo Site). The Bendigo Site is about 175 kilometres from Ihalagamage's home and the one way travel time is about 2 to 2.5 hours.
4. Ihalagamage claims to be entitled to payment for his additional hours of work and travel on the Assignment under the Professional Employees Award 2020 (Award). Alternatively, he claims that F50 agreed to provide him with an hour of time in lieu for each additional hour he worked above his ordinary hours, including travel time, during the Assignment (TIL Agreement). Ihalagamage further claims he is entitled to be paid for the additional hours he was required to work because they were unreasonable, and were not covered by his Contract. Having resigned his employment effective 16 August 2024, he claims that F50 is required to pay him $13,535.05 for 172.55 time in lieu hours he had accrued but not taken at that date.
5. F50 denies there was a TIL Agreement, contending that the Contract provided for Ihalagamage to work the additional hours without further compensation because they were reasonable. Whilst the application of the Award was not in dispute, F50 contends that Ihalagamage's salary level exempts him from the Award time in lieu and overtime entitlements. F50 also disputes the number of time in lieu hours claimed, and contends that time in lieu was in any event provided when Ihalagamage was directed not to work for the two weeks' prior to his resignation taking effect.
6. The matter was heard as a small claim under s 548 of the Fair Work Act 2009 (Cth) (Act). The parties filed an agreed statement of facts. In addition, Ihalagamage and Nathan Heinrich (Heinrich), Director of F50 and Principal Engineer, gave evidence.
7. The first issue I have considered is the Award claim. I have concluded that based on the undisputed facts, the Award time in lieu provisions do not apply to Ihalagamage.
8. The second issue to be resolved is whether there was a TIL Agreement between the parties. To determine this issue, I have considered Ihalagamage and Heinrich's conflicting accounts of several communications about Ihalagamage's additional hours in April and May 2024. I have preferred the evidence of Heinrich which has led me to conclude that there was no TIL Agreement.
9. The third issue I have considered is whether the additional hours worked by Ihalagamage were outside of the scope of his Contract because they were unreasonable, entitling Ihalagamage to the payment claimed. I have concluded that the hours F50 required Ihalagamage to work were reasonable. This is based in part on a conclusion that F50 did not require Ihalagamage to work all the hours he claims for, and in part on a number of other considerations as to the parties and the work.
10. I turn now to my reasons for these conclusions.

1. Clause 18 of the Award deals with overtime and penalty rates. Clause 18.2 and cl 18.3 prescribe overtime and time in lieu entitlements. However, clause 18.6 of the Award, 'Exemptions,' provides that cl 18.2 and cl 18.3 'will not apply to employees who have a contractual entitlement to an annual salary which exceeds the minimum annual wage prescribed in clause 14.1 by 25% or more.'
2. The highest minimum annual wage in cl 14.1 of the Award was $104,074 between 15 April and 30 June 2024, and $107,997 from 1 July 2024 onwards. It was not in dispute that pursuant to the Contract, Ihalagamage was entitled to an annual salary (exclusive of superannuation) of $155,000. This sum exceeds the highest minimum annual wage post 1 July 2024 by $47,003, or 43.5 per cent and pre 1 July 2024 by $50,926 or 48.9 per cent. Because Ihalagamage's annual salary exceeded the minimum Award annual wage by more than 25 per cent, cl 18.2 and cl 18.3 do not apply. Ihalagamage has no Award entitlement to time in lieu.

Evidence and findings about communications between 12 April and 6 May 2024**

1. Ihalagamage contended that the TIL Agreement was initially made on 12 April 2024 and was confirmed in a series of discussions and emails between him and representatives of F50 between then and 6 May 2024.
2. It was not in dispute that on 12 April 2024, Ihalagamage met with Jamie Horkings, Operations Manager (Horkings), and was provided with a company car for use during the Assignment. Ihalagamage's evidence was that in this meeting, Horkings agreed to provide him paid time off work for all of his additional hours. I will return to the details of this meeting and my findings about it.

Heinrich's management authority over Ihalagamage

1. After this time, all of the relevant communications about Ihalagamage's work hours occurred between Ihalagamage and Heinrich. However, Ihalagamage disputed that Heinrich had management authority over him regarding the time in lieu issue.
2. It was not in dispute that Heinrich was the client manager for CW and also worked at the Bendigo Site, but that the Contract provided Ihalagamage reported to Horkings. It was also not in dispute that on 29 April 2024, Matt Barden (Barden), another Director, told Ihalagamage that Horkings had stood down and that Ihalagamage would now report directly to Barden.
3. Ihalagamage said that prior to Horkings standing down, all work instructions and HR matters came through Horkings and no other Directors had operational responsibilities within the company. He produced a summary of text messages illustrating no previous communications from Heinrich before 15 April 2024. He said that because Heinrich was not his manager, Heinrich could not negotiate anything with him.
4. Heinrich agreed Horkings was still Operations Manager when he commenced discussing time in lieu with Ihalagamage. However, Heinrich said he is one of three Directors in the small business, who are at the top of the organisational chart, are active within the business and manage all functions of the business. He also had a role in directing Ihalagamage as the CW client manager.
5. I accept Heinrich's evidence and conclude that whilst Heinrich did not have direct line management responsibility for Ihalagamage, he had overall management responsibility for F50 as a Director of the business and a direct interest in the matter as the CW client manager. I am not persuaded that he did not have authority to negotiate with Ihalagamage on behalf of F50 about time in lieu. I conclude that he did.

1. Heinrich gave evidence, and I accept, that F50 does not have a formal time in lieu policy. F50 monitors staff workloads and uses discretion to provide some form of relief if staff are going well over and above. Overtime is not usually returned by time in lieu, it is offset by discretionary benefits or by working from home.
2. It was not in dispute that on 16 April 2024, the second day of the Assignment, at an informal roadside meeting instigated by Heinrich, Heinrich told Ihalagamage that F50 did not have a time in lieu policy.
3. The nature and significance of this statement was in dispute. Ihalagamage said that Heinrich casually raised that F50 does not do time in lieu for additional time. Heinrich didn't tell him there was no time in lieu as a work instruction, he just made a comment, not as a Director of the company, but as a work colleague. Heinrich said he made the statement to clarify to Ihalagamage what the arrangements within the business were. Ihalagamage had raised a concern about travel and they discussed how it would be accommodated. Heinrich told Ihalagamage that F50 didn't have a time in lieu policy but as it was only the second day of the Assignment, he wanted to see how the role took shape to manage Ihalagamage's travel requirement. Heinrich also told Ihalagamage he was not required at the Bendigo Site every day, that on-site requirements would likely reduce over time, and other staff, including Heinrich, could also work on-site.
4. Ihalagamage said that after the meeting he immediately telephoned Horkings and told Horkings he didn't agree with what Heinrich had said. Horkings said he would make some calls and get back to Ihalagamage, but did not do so before he stood down.
5. I conclude from this evidence that in the 16 April Discussion, Heinrich conveyed to Ihalagamage that F50 does not provide time in lieu for additional hours. I am not persuaded that the statement, which Ihalagamage accepted was made, had any lesser meaning or effect due to either the informal nature of the meeting or because Heinrich was not Ihalagamage's line manager. Ihalagamage's immediate call to Horkings further suggests that he understood, but disagreed with, what he was told by Heinrich.

30 April Email, 3 May Email and related communications

1. It was not in dispute that within CW, Ihalagamage reported to Nathalie Lopez, Bendigo Site Operations Manager (Lopez). Heinrich said, and I accept, that he had a discussion with Lopez on 30 April 2024 about the Assignment in which they reached agreement about managing Ihalagamage's travel requirements. Heinrich did not confirm the agreement in writing with Lopez, however it was not in dispute that he emailed Ihalagamage that day about his discussion with Lopez, stating:
   • Nathalie is mindful of your travel time, as we are, and we agreed that you are not required to be present 8.30-4.30pm for the days you attend site (nominal 3 days/week).
   • She is more than happy to accommodate some travel time into the work day (say 2-3hrs), and overnight accommodation is an option if your site days couple up. You and I will manage time/expense come end of month invoicing, F50 will wear some travel time.
2. In the 30 April Email, Heinrich also canvassed other methods to reduce Ihalagamage's required time on site, including that Ihalagamage had autonomy to work out the key times he needed to be on site and when he could work remotely, 'to optimise efficiency and travel time'. Heinrich also suggested junior engineers, including 'Sumit', could assist Ihalagamage to pick up some of his menial tasks and encouraged Ihalagamage to manage the workflow to bring Sumit on board, to 'facilitate redundancy in the role'.
3. It was not in dispute that Ihalagamage initially replied to the 30 April Email the same day, saying 'Thanks Nath! Good stuff. Regular overnight stays aren't ideal with kids etc.., but traveling during work hours is a better option. Getting Sumit for some safety items next week and aiming to introduce him to on-site work more, and the new grad as much as can.'
4. There was a dispute as to what occurred next. However, it was common ground that on 3 May 2024 Ihalagamage sent Heinrich a further email stating:

Nath, > > I've reached my limit and it's time to address some issues: > > - The standard work day is 7.6 hours and 38 hours per week, not the 10 or 11 hours you've been suggesting. The additional hours you're talking about are regular and significant, and I don't find it reasonable to expect me to offset them. > > - Regarding the role itself, ... there will be a significant site presence required to perform that role, even if you don't see it that way. I have given you my professional opinion but you keep neglecting mentioning that there is another approach, please direct me, which I will follow. I have an obligation to do the job properly irrespective of all these side shows and how hard it is for me. > > - Both you and Jamie have emphasized numerous times that the company offsets travel time, but you haven't followed through, nor have you made any plans to do so. It seems like you've negotiated something with CW and wants rest by me, which I haven't agreed to. I've already offset 15+ hours per week in the past few weeks, and there hasn't been any acknowledgment or gratitude shown for that. ...

5. Ihalagamage's explanation for his change in position was that he had accepted Heinrich's offer to travel during work hours on 1 May 2024, and did so that morning, but Heinrich then called him and told him he could not travel in work hours at all. Heinrich said the reason he called Ihalagamage was that Lopez had told him Ihalagamage had both arrived late and left early that day. Heinrich felt Ihalagamage had misunderstood his instruction that only one way travel could be included as part of the work day. He said he reiterated in the call that F50 does not have time in lieu as a policy and restated the agreement he made with Lopez was for one way travel.
6. I prefer Heinrich's account of this discussion. Ihalagamage's subsequent 3 May Email reference to having to work '10 or 11 hours' is consistent with one way travel within billable time. If all travel was undertaken outside billable hours, this would result in a total of 12 to 13 hours per day. I conclude that Ihalagamage did initially form the view, from the 30 April Email, that he could undertake all travel in billable hours. His initial reply stating 'traveling during work hours is a better option' without qualification is consistent with this. I conclude that it was only after this discussion that Ihalagamage understood only one way travel would be accommodated. The 3 May Email is consistent with him changing his position in light of this new understanding. Ihalagamage relied on his time sheet for 1 May 2024, which reflects only one way travel in billable hours, in support of his account of this discussion. However, he agreed he only started recording travel time after 6 May 2024, meaning this record was made retrospectively, and it is not surprising that it therefore reflects only one way of travel.
7. It was not in dispute that in response to the 3 May Email, Heinrich called Ihalagamage and said he would arrange a formal meeting with Ihalagamage and the management group. However, again, the accounts of this call differed. Heinrich says he told Ihalagamage the purpose of the meeting was to work through Ihalagamage's concerns. Ihalagamage said that Heinrich told him F50 would give him time in lieu for additional hours. I prefer Heinrich's account of this call. I consider it unlikely, in light of the previous communications, and given the call was to arrange a meeting to discuss Ihalagamage's additional hours, that Heinrich agreed ahead of that meeting to provide time in lieu.

1. It was agreed that on 6 May 2024, a meeting was held between Ihalagamage, Heinrich, Senior Project Manager Jeremy Nolan (Nolan) and Barden.
2. Heinrich said that he believed the meeting was productive and they had reached agreement and understanding about how the role would be delivered and how they would manage additional effort. On 8 May 2024 he sent an internal email titled 'HR Note' which he did not copy to Ihalagamage but which accurately recorded the meeting. The email stated:

...DK [Ihalagamage] has been in regular phone/face contact with management team (JH, NH, MB and JN) in period 15/4/24-3/5/24 regarding recently commenced secondment. Particular concern from DK surrounding the overtime initially required to service the role and how this is addressed/recognised. ...

• Formal meeting held with DK on Monday 6/5/24, with NH, MB and JN present.
• DK encouraged to manage the role to minimise overtime, and how to structure resourcing across the business to optimise role delivery and efficiency.
• F50 to record all overtime as non-billable task in the job, with some time off in lieu (e.g. occasional day off) provided by agreement with JN/NH/MB where it doesn't impact delivery.
• Discussed Coliban Water's acceptance of some travel time can be incorporated as billable time (say 2hrs per site day).
• Recognition that not all overtime can be returned in lieu and is offset in other ways e.g. WFH and for broader business success
• Commitment that discussions are continuing to provide DK with resource support to the role both internally and recruitment, in collaboration with his leadership in role definition and strategic delivery.

1. Ihalagamage's evidence about what occurred in the meeting was contradictory. He initially said that the managers confirmed that he had to do 8 hours' billable work on site and that they would give time in lieu. He said the outcome of the meeting was the TIL Agreement. However, he also agreed that he was not told that he would receive 'hour-for-hour' time in lieu and accepted that Heinrich had never stated what percentage of Ihalagamage's additional hours he would receive time in lieu for. He said he did not know Heinrich's calculation. He also said that Heinrich mentioned CW's agreement that some travel time could be incorporated as billable time. He agreed that minimising overtime was discussed, that he could make calls while travelling, not attend the Bendigo Site when unnecessary, and have support from another graduate.
2. Heinrich said that he did not discuss the specifics of what time in lieu meant because it is offered on a discretionary basis when F50 perceives additional efforts. Ihalagamage said he refused this proposition. However, Ihalagamage also said he was happy with the outcome of the 6 May Meeting. It was accepted that he did not subsequently raise any further issues about travel time.
3. I conclude that the 8 May Email is an accurate record of what the F50 managers said in the 6 May Meeting. I do not accept that Ihalagamage was told that all travel must take place outside billable hours, as he accepted Heinrich mentioned otherwise. I do not accept that F50 agreed to provide time in lieu for all additional hours worked. Ihalagamage agreed this was not stated. I conclude that at the 6 May Meeting, F50 agreed to provide Ihalagamage with an undefined amount of time in lieu, expressly not on an hour for hour basis, at its discretion, along with a number of other measures which F50 intended would reduce the additional hours required of Ihalagamage.
4. It was not in dispute that at the 6 May Meeting, F50 requested that Ihalagamage record his travel time and subsequently established an additional time recording category for him to do so. Ihalagamage characterised this as evidence supporting the TIL Agreement. Heinrich said it was because F50 wanted to monitor what days Ihalagamage was going to site and so F50 could understand his travel requirements, so they could be addressed later on. I accept Heinrich's evidence as to the purpose of recording travel time, which is consistent with the 8 May Email.

1. It was not in dispute that Ihalagamage gave notice of his resignation on 17 July 2024. On 25 July 2024, he emailed Barden stating that he had unused time in lieu accumulated, and that with the handover and other tasks, it looked like he wouldn't have much time, asking 'what options do I have?' Prior to his resignation taking effect, he gave F50 a document detailing his claim for accumulated time in lieu and requesting that he be paid for it as an eligible termination payment, upon his resignation.

1. Returning to the 12 April Meeting, Ihalagamage's evidence was that he had previously raised concerns with Horkings about the travel required for the Assignment. He said that on 12 April 2024 Horkings agreed that Ihalagamage would get paid time off work for all of his additional hours, on an hour for hour basis. Ihalagamage said there was no agreement F50 would pay for time in lieu, but Horkings assured him that F50 would wear the travel time cost, as a business development activity, in F50's books.
2. Horkings did not give evidence in the proceeding and no explanation for this was provided. Notwithstanding that this may ordinarily lead to an inference that his evidence would not have assisted F50, I did not consider Ihalagamage's evidence about the 12 April Meeting to be reliable.
3. The evidence illustrated a pattern whereby Ihalagamage maintained that F50 had unconditionally agreed to the TIL Agreement in subsequent communications with F50 in the face of either express statements to the contrary, or only limited and non-specific statements having been made by Heinrich. Ihalagamage appeared to hold a genuine belief that F50 had agreed to the TIL Agreement. However, I consider that he formed this belief without a reasonable foundation, despite F50 expressly stating to the contrary.
4. Further, the conduct of the parties subsequent to the 12 April Meeting is inconsistent with the TIL Agreement having been reached. Heinrich told Ihalagamage in the 16 April Discussion that there was no time in lieu policy. On Ihalagamage's evidence, Horkings did not confirm the TIL Agreement in their subsequent phone call. Ihalagamage's initial reply to the 30 April Email reflects a belief and acceptance that travel time would be undertaken in billable hours, rather than compensated by time in lieu. His 3 May Email does not assert the TIL Agreement but states only that Heinrich and Horkings had 'emphasised numerous times that the company offsets travel time' and states that F50 had not followed through in doing so.
5. Whilst I am persuaded by Ihalagamage's evidence that he and Horkings discussed time in lieu, I do not accept that Horkings told Ihalagamage that F50 would wear all travel time and he would get time in lieu for all additional hours on an hour for hour basis. In any event, on Ihalagamage's own evidence, there was no commitment by Horkings to make any payment for time in lieu.

Was there a contractual entitlement to time in lieu?

1. Having concluded that there was no TIL Agreement as alleged by Ihalagamage, I have also considered whether any other agreement with contractual effect arose from the statements made by F50 representatives as to time in lieu.
2. In the 30 April Email, Heinrich stated that ' F50 will wear some travel time' however this was to be managed 'come end of month invoicing'. This was then overtaken by the 6 May Meeting, where the relevant F50 commitments were that some time off in lieu (an occasional day off) would be provided to Ihalagamage by agreement with a manager where it did not impact delivery, however not all overtime would be returned in lieu. There was no commitment as to when, or how much, time in lieu would be granted. A wide discretion was retained by F50. I do not consider this sufficient to objectively establish contractual intent on the part of F50. Nor did Ihalagamage intend an agreement in these terms. He said he did not agree to part time in lieu. He believed, albeit without foundation, that the 6 May Meeting resulted in the TIL Agreement.
3. Further, even if these commitments were enforceable, the extent of F50's obligations would have been to reasonably consider approval of discretionary grants of occasional time in lieu where it did not impact delivery. There is no evidence of any request to take time in lieu by Ihalagamage, or any refusal to provide it, whilst the employment was on foot. Ihalagamage only ever sought payment. However, the commitments made by F50 at no point extended to payment of accrued time in lieu on termination.
4. Ihalagamage referred the Court to a number of authorities which I have considered. Kwok Fu Chan v Fire Protection Services (WA) Pty Ltd confirms the jurisdiction of a State and Territory Court to deal with a small claim under the Act. Other authorities related to the standard of proof for a serious allegation or dealt with matters specific to other awards or the capacity to set off payments against award entitlements. These authorities did not assist with the current matter.

ISSUE 3 - WERE THE ADDITIONAL HOURS UNREASONABLE?

1. It was not in dispute that the Contract provided for F50 to require Ihalagamage to work reasonable additional hours above 38 ordinary hours per week from time to time. Clause 4 stated: 'You agree, having regard to the Employer's operational requirements, the nature of your position and the wages paid to you under this letter, that all additional hours are reasonable.' Clause 5.4, 'Remuneration', provided that payments by F50 under the Contract included payment for all hours worked and overtime.
2. Ihalagamage contended that the additional hours were outside the scope of the Contract, as they were unreasonable, and he should therefore be paid for them.
3. F50 contended that because of cl 4, there was no entitlement to any additional remuneration for additional hours. F50 did not rely on Ihalagamage having agreed in advance that 'all' additional hours were reasonable, but rather contended that assessed objectively, the additional hours Ihalagamage was required to work were reasonable, having regard to F50's operational requirements, the nature of his position and his salary. F50 further contended that any entitlement to payment for additional hours, which was denied, ought be greatly reduced due to discrepancies in Ihalagamage's records and because the hours were travel, not work.
4. The parties did not address the legal basis for an entitlement to payment for hours worked outside the scope of the Contract. I have assumed without deciding that an entitlement to reasonable remuneration could arise.[1] However, I have nonetheless concluded that the additional hours F50 required Ihalagamage to work were reasonable and thus fall within the scope of the Contract.

What additional hours was Ihalagamage required by F50 to work?

1. Ihalagamage claimed he was required to work 172.55 additional hours over a 17 week period. Ihalagamage's claimed additional hours range from 6.5 hours a week (one day on site) to a maximum of 17.2 hours per week (three days on site) above 38 hours in the first week of the Assignment. Ihalagamage relied on a spreadsheet with a daily breakdown of his hours to 21 June 2024, and his time sheets, which from 15 April 2024 separately record entries for CW 'Project Management' and 'Travel Time' and include some time-based records. The additional hours Ihalagamage claimed he was required to work are set out in Table 1 of Attachment A, along with the number of on-site days he worked each week derived from the time sheets.
2. F50 disputed the accuracy of the claimed and recorded hours. Ihalagamage relied on his time sheets having been approved weekly to establish their accuracy. However, he agreed that for 15 April 2024 his time-based breakdown did not match his travel time entry. He also agreed that the time sheets included hours and travel time after 5 August which he did not perform, saying these were his forecast hours or must have been entered by someone else. I accept hours after 5 August were not included in the claim. However, there were other inconsistencies between the various records, illustrated by a comparison of them for the first week of the Assignment, at Table 2 of Attachment A. Despite this, the discrepancies are minor, and I have used the hours claimed to consider the matters below.

1. It was not in dispute that during the Assignment F50 required Ihalagamage to work 40 hours per week for its duration, as opposed to his 38 ordinary hours. Ihalagamage's claim includes these 2 hours for each week that additional hours are claimed.

1. Ihalagamage's spreadsheet illustrates that except for 1 May 2024 his claimed hours include travel time for both directions of travel outside billable hours. For most of those days, only 15 or 30 minutes of Ihalagamage's travel was absorbed into billable hours.
2. Ihalagamage said that he decided not to travel in work hours because Heinrich's message was inconsistent between 30 April and 1 May. I have already rejected this characterisation of the 1 May conversation. Ihalagamage also said it was not possible for him to travel in work time, because CW set the work and he did not have any flexibility. He relied on a calendar entry from 22 May 2024 which he said was a typical day, with meetings from 9am until 4pm. I also reject this. Given the express permission provided to Ihalagamage to travel one way in billable hours by CW, and the autonomy granted to him by Heinrich to arrange his work, I am not persuaded Ihalagamage could not have arranged to travel one way in work hours.
3. Ihalagamage also argued that because there was no written agreement between F50 and CW reflecting his entitlement to travel one way in billable hours, the agreement was not enforceable. He relied on CW's 'General conditions for the provision of Services' which state at cl 19(c) that the agreement with F50 can only be varied or replaced by a written document executed by the parties. I was not persuaded by this argument, as there was no initial contractual term between F50 and CW about how Ihalagamage's travel time was to be treated requiring variation or replacement.
4. I conclude that Ihalagamage was permitted by F50 and CW to undertake one way travel to the Bendigo site per day within billable hours. I infer the reference in the 8 May Email to 'say 2 hours' was an estimate of the one way journey time, not a cap. It follows that to the extent Ihalagamage undertook this travel outside billable hours, he was not required to do so by F50. Had Ihalagamage fully absorbed one direction of travel into billable hours, he would have incurred up to two hours less additional hours per day.

1. I conclude that F50 offered Ihalagamage the option of staying overnight in Bendigo. The written proposal from F50 to CW upon which the Assignment was based specified that F50 would charge CW for overnight accommodation where required, with express approval from CW. Ihalagamage's own evidence was that when he initially discussed the Assignment with Horkings, Horkings asked if Ihalagamage was open to spend overnight in Bendigo. In the 30 April Email Heinrich recorded that overnight accommodation was an option if his site days coupled up.
2. Ihalagamage's evidence was that he was not in a position to stay overnight as he has two young children and his wife relied on him to drop them at school and other things, and whilst one to two nights was fine, it was not an option for six months. I accept that regularly staying away from home was not Ihalagamage's preferred option as it involved being away from his family. However, Ihalagamage's practice of travelling to the Bendigo Site and back, mostly outside billable hours, also involved a very long day away from his family. Ihalagamage's evidence did not otherwise address the relative benefits of travel over overnight stays. I was not persuaded that at least some overnight stays could not have been undertaken. Had Ihalagamage 'coupled up' his site days and taken the option of overnight accommodation, as suggested in the 30 April Email, it would have avoided two journeys between his home and the Bendigo Site, and reduced his total work/travel time by four to five hours, on each occasion he did so.

1. Ihalagamage said that he recorded all work above 7.6 hours per day as travel time, including when he worked longer than 8 hours per day on site. F50 contended that Ihalagamage was not required to work these hours as F50's contractual obligation to F50 was 8 hours per day. I agree with this contention, however Ihalagamage's spreadsheet indicates that the occasions on which this occurred were minimal and I do not consider it materially impacts the overall reasonableness or otherwise of the hours.

Conclusion on what additional hours F50 required Ihalagamage to work

1. I conclude that Ihalagamage was required to work two additional hours per week on the Assignment by virtue of the 40 hour per week commitment. Further, I conclude that F50 required Ihalagamage to work additional hours to undertake some travel outside work hours. However, from 1 May 2024 Ihalagamage was not required to work additional hours for one way of travel each day he worked on site. Further, for the duration of the Assignment he could have undertaken overnight stays. It is difficult to be precise as to what the consequence for Ihalagamage's additional hours would have been had he availed himself of both of these measures, in particular because the overnight stay was dependent on him 'coupling up' his days on site. But for illustrative purposes, in a week that Ihalagamage worked two days from the Bendigo Site, had he conducted one way of travel in billable time and stayed overnight, the need to work additional hours could have been eliminated.
2. It is in this context that I have considered the question of reasonableness.

Factors in determining whether additional hours are reasonable

1. The Contract at cl 4 prescribes the matters to be considered as to whether hours are reasonable, which are F50's operational requirements, the nature of Ihalagamage's position and the wages paid. Both Ihalagamage and F50 also made reference to the considerations set out in the National Employment Standard concerning maximum weekly hours at s 62(3) of the Act. F50 contended, relying on Australasian Meat Industry Employees Union v Dick Stone,[2] that what is reasonable in any given case depends on an evaluation of the particular circumstances of both the employee and employer. I have considered each of the matters raised by the parties in determining whether the additional hours are reasonable.
2. Ihalagamage contended that the additional hours were unreasonable because:

(a) They were required every week for a six month period with possible extension;

(b) Health and safety risks arise with extended driving and shifts exceeding 13 hours;

(c) His personal circumstances and family responsibilities were adversely affected;

(d) He provided notice that additional hours would only be undertaken if compensated;

(e) His refusal was consistent with industry practice;

(f) He was also required to undertake other work unrelated to the Assignment;

(g) There was no consultation with him prior to committing him to the Assignment; and

(h) His position did not ordinarily require such extensive hours of work and duties.

1. F50 contended that relevant considerations in this case are:

(a) F50 is a small consultancy firm;

(b) Most of its projects are located in regional Victoria which necessitates travel;

(c) CW was a significant client and source of revenue;

(d) To win CW work necessitated F50 staff to travel or stay overnight in Bendigo;

(e) It is expected that employees incur some travel at their own expense to attend work;

(f) Ihalagamage was the only person with capacity to take on the role; and

(g) Ihalagamage's level of remuneration is consistent with an expectation of working additional hours and travel outside hours, as evidenced by the Award exclusion.

F50's operational requirements and the nature of Ihalagamage's position

1. Heinrich's evidence was that F50 works for governments, water authorities, construction contractors and private developers and the majority of its work is in regional Victoria and New South Wales. F50 regularly expects staff to travel outside of work hours. Many projects are a few hours' drive from the base offices in Echuca or Melbourne. F50's project management services are quite often performed partially from client sites. Often accommodation is provided to manage workload and fatigue. Further, other F50 employees including Heinrich were based in project management roles on CW sites in Bendigo, Echuca and Cohuna. Heinrich accepted that each project is different and some have a more intense site presence than others.
2. Ihalagamage's evidence was that prior to the Assignment, he performed engineering consulting services across five to ten projects at a time, in contrast to the Assignment, which was labour hire into a role within an operational team. He agreed regional site visits were regularly required, however said most F50 work was engineering projects which require less site presence, and travel requirements are usually infrequent, ad hoc and came with flexibility to informally take time off.
3. I conclude based on this evidence that the majority of F50's client work is regionally based. Given this, I accept Heinrich's evidence that F50 project managers are regularly required to travel as part of their role. I also accept that other F50 staff were required to work from remote CW sites. Whilst I accept that the work and travel requirements of the Assignment were substantively different to the types of projects Ihalagamage had previously personally worked on, I am not satisfied that the Assignment was outside of the range of projects generally required of F50 project managers.
4. I conclude that F50's operational requirements and the nature of Ihalagamage's position support a conclusion that the additional hours were reasonable, as they were undertaken in a context where the majority of F50's client work is regionally based and F50 project managers are regularly required to travel outside hours as part of their role.

1. It was not in dispute that prior to the Assignment, Ihalagamage was occasionally required to work reasonable additional hours, including on weekends, for which he received no additional remuneration. Whilst ad hoc, he estimated this to be an average of two to three hours per week. This supports a conclusion that the requirement to work 40 hours per week on the Assignment was not of itself unreasonable, particularly in the context that the Assignment was temporary and for a fixed initial six-month period only.

1. Ihalagamage's salary exceeded the highest Award minimum by 48.9 per cent initially and then 43.5 per cent (see paragraph 12). Whilst the provisions of the Award are not directly applicable to the Contract claim, they indicate minimum the legal standard. Ihalagamage's salary was well above the minimum necessary to compensate him for a 38 hour week and also disentitled him to Award benefits for additional hours. This illustrates that Ihalagamage's salary is capable of compensating him for work beyond 38 hours, and is expected to do so.

F50 efforts to mitigate/minimise additional hours

1. A further matter which I consider supports a conclusion that the additional hours were reasonable is F50's attempts to mitigate and minimise Ihalagamage's additional hours.
2. I conclude that F50 encouraged Ihalagamage to manage the role to minimise overtime, and provided him with strategies to do so. F50 told Ihalagamage he had autonomy to determine when he needed to be on site and when he could work remotely and that he could and should delegate some on-site work to more junior engineers.
3. In the 3 May Email Ihalagamage in effect rejected this approach, stating that there would be a significant site presence required 'even if you don't see it that way.' Nonetheless, Ihalagamage's records illustrate a reduction of days at the Bendigo Site over the course of the Assignment which is consistent with Heinrich's evidence that he believed the on-site component would reduce over time. In total, there were only six weeks where Ihalagamage was at the Bendigo site for three days, and each of these occurred in the first eight weeks of the Assignment. After that time, Ihalagamage mainly worked two days per week at the Bendigo Site and on one occasion worked one day, with a commensurate reduction in travel time.
4. In addition, F50 was responsive to the concerns raised by Ihalagamage in proposing mitigatory measures, including the offer to provide Ihalagamage with time in lieu in the form of an occasional day off in respect of some of the additional hours worked. It was not in dispute that Ihalagamage was not required to work for the final two weeks of his notice period. F50 contended this was akin to providing time in lieu. I reject this characterisation, as Ihalagamage was instructed not to attend work by F50 without reference to his time in lieu. However, time in lieu was available to Ihalagamage to request whilst the employment was on foot, but he did not request it.

Travel ordinarily required of an employee in their own time

1. F50 contended that because the additional hours were primarily travel time and not 'work' they should be viewed in a context whereby most employees are required to incur some travel time at their own expense. Ihalagamage said, and I accept, that the driving time between his home and F50's office is five to 10 minutes, however he cycles to and from the F50 office for exercise. Whilst Ihalagamage accepted that he did not get paid for travel between F50's office and his home, he disagreed that, to an equivalent extent, his travel to the Bendigo Site would be reasonable.
2. Ihalagamage contended further that travel to the Bendigo Site was travel 'for work' not 'to work' and that standard practice was to undertake this travel in working hours or charge back the client for the hours incurred. Relatedly, Ihalagamage contended that F50's travel policies required F50 to have completed a journey plan for him, and required all of his travel to be undertaken during business hours.
3. It was not in dispute that F50 has a published Travel Procedure. The Travel Procedure stated that there were 'above average' travel requirements for F50 employees. It provided that: the total work day (work plus driving) should not exceed 12 hours; driving time should not exceed five hours in one direction; driving should not exceed two trips in one day exceeding three hours each; and journey management plans were mandatory for travel beyond 200 kms from the home office. It was also not in dispute that on 21 November 2022 Horkings emailed all F50 staff with the subject 'Inter-Office Travel Process.' It stated that F50 would like to encourage inter-office travel and stated '[t]o assist with this please see below the formal process to be followed.' That process included a requirement that all travel be pre-approved and that staff were required to arrange to travel and arrive at their destination in business hours. Travel longer than two hours was required to be accompanied by an approved journey management plan.
4. The policies do not have the effect contended for by Ihalagamage. The Inter-Office Travel Process email is confined in its application to discretionary travel between F50's two offices. The travel being undertaken by Ihalagamage fell within the permissible travel under the Travel Procedure, except he exceeded 12 hours work and driving time on several days. However, after 30 April, this arose because Ihalagamage did not undertake one direction of travel within billable hours. The travel policies themselves do not support a conclusion that the required additional hours were unreasonable.
5. More broadly, I accept Ihalagamage's contention that the travel he undertook to the Bendigo Site was of a different nature than ordinary travel to and from work by an employee. I don't consider the two can be equated. However, I also accept F50's contention that, in effect, the time claimed by Ihalagamage ought be offset to the extent that employees' time in travelling to and from work is ordinarily not compensable. I consider it appropriate to have regard to this notwithstanding that Ihalagamage ordinarily used that journey to exercise. I have had regard to this factor in a qualitative way only and make no finding on what an ordinary amount of time for travelling to and from work would be for an employee. However, I would expect it to often significantly exceed Ihalagamage's own travel time to F50's office. In any event, even the nominal five to ten minute journey referred to by Ihalagamage would offset each day of travel he has claimed by 10 to 20 minutes.

1. Ihalagamage said, and I accept, there was no consultation with him prior to F50 committing him to the Assignment. Ihalagamage said that Horkings persuaded him to accept the Assignment. An email from Horkings to Heinrich, Ihalagamage and others on 8 April 2024 corroborates this, stating 'We are on here. DK full time starting ASAP and support as required.' I conclude this occurred after CW accepted F50's written proposal.
2. This supports a conclusion that the additional hours were unreasonable. It was foreseeable from the terms of the agreement between CW and F50 that Ihalagamage's work and travel requirements would need to be addressed. Had consultation with Ihalagamage occurred, it might have resulted in an arrangement which necessitated less additional hours. However, F50's attempts to mitigate or minimise additional hours commenced shortly after the commencement of the Assignment, which I consider reduces the significance of F50's failure to consult in advance.

Ihalagamage's personal circumstances and family responsibilities

1. I accept that the Assignment resulted in Ihalagamage's personal circumstances and family responsibilities being adversely affected. This included time with his family, caring for his children, and also time travelling to work which previously he was able to use for exercise. This clearly supports a conclusion that the additional hours were unreasonable.

1. I am not persuaded that the 6-month duration of the Assignment makes the additional hours unreasonable. It was a temporary project, of a fixed duration, meaning the period in which the additional hours was required was limited. Further, as described above, it is apparent from the pattern of hours relied upon by Ihalagamage that the need for him to be present on site reduced after the initial 8 week period.

1. I accept that there are health and safety risks associated with long shifts of work and driving, as is recognised in the Travel Procedure. However, again, shifts of this duration could have been avoided had Ihalagamage's undertaken one way travel within billable hours and/or availed himself of overnight stays.

Requirement to perform work unrelated to the Assignment

1. Ihalagamage's time sheets indicate only one occasion of work being billed to another client, being Discovery Parks, on 26 April 2024, for 1 hour. I accept that Ihalagamage may not have recorded other client work in his time sheets, however there is also no reference to it on his own spreadsheet. I am not persuaded that there was anything more than a nominal amount of work required for other clients.

1. Ihalagamage relies on having provided verbal and written notice that he would not undertake the additional hours unless they were compensated. However, I am not satisfied that he did so, as he continued to undertake the Assignment following the 6 May Meeting without complaint.

1. There was no evidence of industry practice before the Court, and I have not had regard to this factor.

Ihalagamage was the only person available for the Assignment

1. This was not the subject of any evidence and I have disregarded it.

Conclusions as to whether the additional hours were reasonable

1. I have already indicated my conclusion that Ihalagamage was not required by F50 to work all of the additional hours he has claimed. In that context, I conclude that to the extent F50 required Ihalagamage to work additional hours, those additional hours were reasonable. I have reached this view despite F50's failure to consult Ihalagamage ahead of committing to the Assignment and despite the adverse effects it had on him personally and on his family responsibilities. I have reached this view in light of the nature of the business and Ihalagamage's role, his salary, F50's additional efforts to mitigate or minimise the required additional hours, the temporary nature of the Assignment and because the hours in effect absorbed what would ordinarily be non-compensable employee travel to and from work.
2. At its heart, Ihalagamage's main complaint in this proceeding was that he was not paid for the additional hours. His position was that he did not agree to undertake the Assignment in the absence of compensation for his travel time. However, on the evidence before me, F50 never agreed to this position, and Ihalagamage nonetheless undertook the Assignment. Ihalagamage's own evidence was that he liked working at CW, the travel was taxing but if he had been paid for it, it would have been reasonable. I am not satisfied that F50 was required to provide hour for hour time in lieu in order for the additional hours to be reasonable.
3. Accordingly, the claim is dismissed.

TABLE 2 - INCONSISTENCIES IN RECORDS AND CLAIM - WEEK OF 15 APRIL 2024

[1] See Irving, M, The Contract of Employment, (2nd Ed, LexisNexis Butterworths, 2019), 348 [6.31], 363 [6.41].

[2] [2022] FCA 512, [225].