Refusing to work overtime - whose right is that?

Under the modern awards and the Fair Work Act 2009, employers can request that employees work “reasonable overtime”.  If a request for reasonable overtime made by the employer to the employee is refused, it could have consequences for the employee.  Similarly, if the overtime hours requested are unreasonable, it could have consequences for the employer.  The recent decision of Currie v Trustee for B&S Hambleton Trust T/A Perfect Coat Painting [2019] FWC 7462 concerned the relevant considerations as to what is “reasonable overtime".

An employee may refuse to work overtime hours if the overtime hours are unreasonable.  Pursuant to section 62 of the Fair Work Act 2009, and adapted in some modern awards, factors to be considered when determining whether the overtime hours to be worked are reasonable, include:

• any risk to the employee’s health and safety from working the overtime;
• the employee’s personal situation, including their family responsibilities;
• the workplace's needs;
• if the employee is entitled to receive overtime payments or penalty rates or other compensation for working overtime;
• if they are paid at a higher rate on the understanding that they work some overtime;
• if the employee was given enough notice that they may have to work overtime;
• if the employee has already stated they can’t work the overtime; 
• the usual patterns of work in a particular industry;
• the nature of the employee’s role and level of responsible; and
• whether the overtime is in accordance with averaging terms in a modern award of enterprise agreement.

The Currie Decision 

Mr Currie was an apprentice painter whose employment with Perfect Coat was subject to the Building and Construction General On-Site Award 2010.

Mr Currie’s employer advised Mr Currie on Tuesday 9 April 2019 that he was expected to work in 4 days’ time, on the following Saturday and Sunday, in order to complete a client’s project on time, and avoid a claim for liquidated damages on that project.  

Mr Currie told the employer 3 days later, on the following Friday, that he did not want to work on the Sunday because it was his cousin’s birthday party the night before.  The employer told Mr Currie that he was required to attend for work on Sunday, or he risked termination of his employment.

On Sunday 14 April 2019, Mr Currie failed to attend for work.  The employer sent Mr Currie a text message that read: 

“You can find another job mate, you are sacked.  I told you you were working today and yet you have ignored me once again.  I hope your night out on the piss was worth losing your job over”.¹

Having been dismissed, Mr Currie made an application in the Fair Work Commission for unfair dismissal.

In the Commission, Mr Currie said that he had worked every day during the past week, and was regularly working 50-hour weeks, rather than the 38 hours he was supposed to work under his apprenticeship agreement.  Mr Currie said that the overtime hours requested by his employer to work on Sunday were unreasonable in light of the additional hours he had already worked prior to the Sunday. 

In response, the employer said that Mr Currie had been previously warned about his poor attitude at work.  The employer also stated that the relevant project had required completion by Monday 15 April 2019 and so to meet that deadline, Mr Currie had been required to work the weekend to assist the employer to meet its contractual obligations on time.  

The employer also stated that Mr Currie had not worked on the weekend before, nor would he be working the weekend after, because it was ANZAC Day, so it was reasonable to request him to work overtime on Sunday 14 April 2019.

Despite finding that Mr Currie had been given valid notice for the reason for his termination and a prior warning that if he did not attend for work he would be dismissed, the Commission found that Mr Currie had been unfairly dismissed because there was not a valid reason for dismissal, because the overtime hours requested of him to work were unreasonable.  The Commission stated: 

“[Mr Currie] was, after all, entitled to enjoy having weekends off work, and only work weekends where requested and where each weekend work day was reasonable in all the circumstances.”²

“Mr Currie was a young apprentice employee and his level of responsibility should not have been, in my view, dependent on whether his employment would be maintained if Perfect Coat would incur liquidated damages if he did not attend for Sunday overtime paid at ordinary time rates of pay.”³

“Far more should have been done by Perfect Coat to get the apprenticeship and employment relationship back on track, and it was unjust and unreasonable to sever the employment relationship on the basis of Mr Currie’s refusal to work overtime on Sunday after having already worked six days that week.”⁴

Mr Currie was awarded eight weeks pay. 

Lavan comment

When Mr Currie was initially told he was required to do overtime, he advised he could not work due to wanting to attend a birthday party.  It is interesting that he did not at that time complain about working six days in a row, and being required to work on a seventh day.

The birthday party issue does not then appear to have been argued before the Commission.  The question may therefore arise, if Mr Currie had persevered with that argument only, whether he would have succeeded.

In any event, the decision in Currie serves as a reminder of an employer’s obligation under the modern awards and the Act to only request reasonable overtime be worked by employees.  

Whilst a refusal to do reasonable overtime may, in certain circumstances, be a valid reason for the employee’s dismissal, that dismissal must still be carried out in a procedurally fair way.  

If you have any questions about overtime, please contact Lavan’s Education and Employment team.