The Christmas-New Year period can be the busiest time of the year for some companies. In this scenario, all employees are required to work additional hours to meet demand. Employees are advised that this period is a ‘black out’ period regarding requests for annual leave. One employee has refused to work overtime during the lead up to Christmas, saying they are too tired to take on additional hours. Their refusal to work overtime will create difficulties for the business.

Can an employee refuse to work overtime?

An employee can 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 that should be considered when making this assessment. Courts and tribunals have generally determined that ‘excessive’ overtime is not intended to provide an employer with a right to solve chronic planning inadequacies of planning.

The Fair Work Act (s62(2)) provides that an employee may refuse to work additional hours (over 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 an 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 is given by the employer of any request or requirement to work the additional hours
  • any notice is given by the employee of their 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 by averaging terms prescribed by the Fair Work Act, or the applicable modern award or enterprise agreement

Unreasonable refusal by an 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 worksite.

The commission found the postal workers’ refusal to be justified on health and safety grounds due to a large amount of overtime they had recently worked. It noted the greater risk of accidents due to reduced concentration in fatigued workers.

The job of a postal delivery worker involved several 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 depend on the circumstances. In this particular case, the employer did not monitor this situation or have particular guidelines regarding this situation.