The question of what is reasonable additional hours (commonly referred to as overtime) is an issue that arises frequently for employers. Whether a business can stay open at crucial times depends upon an employee agreeing to work overtime, sometimes on very short notice. When can an employee refuse reasonable additional hours?
These provisions were ignored by an employer in a recent unfair dismissal case. The Fair Work Commission ordered an employer to pay eight weeks’ wages to an apprentice after it found that an employee was unfairly dismissed for refusing to work additional hours on a Sunday. This decision reminds employers to carefully consider whether requests to work additional hours are reasonable.
When can an employee be required to work additional hours?
The Fair Work Act 2009 (Cth) provides that an employer can request or require:
- a full-time employee to work more than 38 hours per week; or
- a part-time employee to work more than their ordinary hours of work; if the request is reasonable.
An employee may refuse to work additional hours if the request is not reasonable.
The maximum work hours per week is 38 hours (s62 Fair Work Act). An employer must not require or request an employee to work reasonable additional hours, which can be refused if the reasonable additional hours are unreasonable. In determining whether additional hours are reasonable or unreasonable the following must be taken into account:
(a) any risk to employee health and safety from working the additional hours;
(b) the employee’s personal circumstances, including family responsibilities;
(c) the needs of the workplace or enterprise in which the employee is employed;
(d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for working additional hours;
(e) any notice given by the employer to work the additional hours;
(f) any notice given by the employee of the intention to refuse to work the additional hours;
(g) the usual patterns of work in the industry in which the employee works;
(h) the nature of the employee’s role, and the employee’s level of responsibility;
What happened in this case?
In the matter of Currie v The Trustee for B&S Hambleton Trust T/A Perfect Coat Painting  FWC 7462 concerned Mr Currie, a second year apprentice painter.
On Tuesday, April 9 2019, Mr Currie was told that he would be required to work additional hours on Saturday and Sunday that week, as the company was under pressure at the time to ensure a job was completed.
On Friday, April 12 2019, Mr Currie sent a text to his manager, Mr Card, and said that he could not work on Sunday, but he would ‘do a big day’ on Saturday. Mr Card responded by text saying, “it’s not really a question hey I give you time off all the time when you ask how about you show me a bit of the same respect”. When Mr Currie failed to attend work on Sunday, Mr Card dismissed him by text message.
Perfect Coat Painting argued that it had a valid reason for dismissal as Mr Currie had refused to follow a reasonable and lawful direction. It argued that it was reasonable to require Mr Currie to work on Sunday because it had not required Mr Currie to work the previous weekend and Mr Currie was due to have a four-day weekend the following week.
The Commission found that Perfect Coat Painting did not have a valid reason for dismissing Mr Currie as it was not reasonable to require Mr Currie to work on Sunday. The Commissioner acknowledged the pressure Perfect Coat Painting was under and the potential penalties it could face from its client if the job was not completed that weekend.
However, the Commissioner found that Perfect Coat Painting’s request that Mr Currie work on Sunday was unreasonable as:
- Mr Currie had already worked six days that week;
- Mr Currie had already worked additional hours on Saturday;
- Mr Currie was a junior employee and Perfect Coat Painting should not have been so dependent on him;
- Perfect Coat Painting had additional responsibilities to Mr Currie because he was an apprentice; and
- Mr Currie was entitled under the applicable award to receive overtime payments including penalty rates for working the additional hours but was instead paid his ordinary rate for additional hours worked.
Considering all the circumstances, Commissioner Hunt found that Mr Currie’s dismissal was unfair, unjust and unreasonable as Perfect Coat Painting should have done more to ‘get the apprenticeship and employment relationship back on track’. Mr Currie was awarded eight weeks’ wages as compensation for his unfair dismissal.
In this case the employer acted emotionally and hastily in dismissing the employee. Carefully consider the checklist above before making the request. It should be quickly apparent whether these issues mean an employee is in a position to refuse overtime.