Q. Because of the industry in which our business operates, the Christmas-New Year period is usually our busiest time of the year and all employees are required to work additional hours to meet demand. Employees are advised when hired that this period is a ‘black out’ period regarding requests for annual leave for this reason. One employee has refused to work additional hours during the lead up to Christmas, stating this conflicts with their other employment. His refusal to work overtime will create difficulties for the business. Does the employee have the right to refuse to work overtime when directed by the employer?
A. It is possible for an employee to refuse to work overtime, depending on the specific circumstances. Reasonable overtime is an accepted part of the employment context, however it can be difficult to assess whether requests for employees to work overtime are reasonable or not. Health and safety is one factor which should be considered when making this assessment. Courts and tribunals have generally determined that ‘excessive’ overtime is not intended to provide the employer with a right to solve chronic inadequacies of planning or organisation by extensive use of overtime.
The Fair Work Act (s62(2)) provides that an employee may refuse to work additional hours (in excess of their ordinary weekly hours) if the request is unreasonable. There may also be a term in the applicable modern award or enterprise agreement to this effect.
In determining whether the additional hours are reasonable or unreasonable, the following must be taken into account:
- any risk to employee health and safety from working additional hours
- the employee’s personal circumstances, including family responsibilities
- the needs of the workplace or enterprise in which the employee is employed
- whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours
- any notice given by the employer of any request or requirement to work the additional hours
- any notice given by the employee of his or her intention to refuse to work the additional hours
- the usual patterns of work in the industry, or part of the industry, in which the employee works
- the nature of the employee’s role and the employee’s level of responsibility
- whether the additional hours are in accordance with averaging terms prescribed by the Fair Work Act, or the applicable modern award or enterprise agreement
Unreasonable refusal by the employee to work overtime may justify disciplinary action because the employee did not obey a lawful and reasonable instruction or direction of the employer. However, case law suggests the employer should be careful where an employee refuses to work overtime.
Case law
Two workers who were issued with disciplinary warnings for refusing to work overtime had the warnings removed by the Fair Work Commission, which found they had a justifiable reason for their refusal. However, a union official (delegate) who aggressively attacked management’s decision was found to be justifiably transferred to another work site.
The Commission found the postal workers’ refusal to be justified on health and safety grounds due to the large amount of overtime they had recently worked. It noted the greater risk of accidents due to reduced concentration in fatigued workers. It was found the job of a postal delivery worker involved a number of inherent risks, such as traffic, terrain and weather. The amount and history of overtime worked which might justify a refusal to work overtime on health and safety grounds will vary depending upon the particular circumstances. In this particular case, the employer did not monitor this situation or have particular guidelines in respect to this situation.
Bottom line
Reasonable overtime is an accepted part of the employment context, however it can be difficult to assess whether requests for employees to work overtime are reasonable or not and depend on the specific circumstances of each refusal.
