Under s 62(2) of the Fair Work Act 2009 (Cth) (FW Act) a full-time employee may refuse to work hours in a week in addition to 38 if the additional hours are unreasonable.  If you dismiss an employee for refusing to work those additional hours, the employee may challenge the dismissal as a contravention of the general protections provisions (s 340) in the FW Act. 

This is the claim made in Brown v Premier Pet ([2012] FMCA 1089) by an employee worked as a full time fish keeper in a Brisbane fish store.  The employer offered voluntary overtime to employees to undertake routine maintenance work on non-trading days, including Saturday, Sunday and public holidays.  However the employer gave the employee 14 days’ notice that the overtime would become mandatory and the employee would be required to work 3 additional hours on a non-trading day once every seven to 10 non-trading days.  The employee objected and proposed that he be granted time in lieu during the working week.  The employer refused to discuss the requirement and threatened him with dismissal.  The employee attempted to refer the dispute to Fair Work Australia but the employer dismissed the employee.

The reason cited by the employer for dismissal was that the employee refused a proper direction from his employer to work reasonable additional hours.  The employee asserted that by refusing to participate in the involuntary non-trading day roster, the employee had purported to exercise a workplace right, namely, his entitlement to refuse to work unreasonable hours, pursuant to s 62(2) of the FW Act. The employer, by dismissing him for that reason, had taken adverse action against the employee for a proscribed reason.  

In a general protections claim, the FW Act requires the Court to presume that the alleged adverse action was taken for the reason contended for by the employee unless the employer proves otherwise.  The Court then considered whether the employer had demonstrated that the additional hours it required the employer to work were not unreasonable.  Ultimately the Court determined that the employer had not discharged the onus on it to demonstrate that the requirement to work the additional hours was reasonable.  Therefore it failed to establish that it did not terminate employment for exercising his entitlement to refuse to work unreasonable hours.

What is reasonable in terms of additional hours depends on a range of factors set out in s 62 of the FW Act.  Many of these (such as risk to employee health and safety) were not relevant in this case. Other factors, such as the needs of the workplace or the business, or the nature of the employee’s role, and the employee’s level of responsibility, were not the subject of evidence by the employer.

The Court considered that a relevant factor was the employee’s personal circumstances, including his family responsibilities.  The employee lived with his mother who required his assistance with some things.  The employee conducted a business as an internet retailer of swords and wanted to devote his time to that.  The employee also wished not to work many hours additional to 38 because of the effect that it might have on his liability to make contributions from his income to his trustee in bankruptcy.

The Court considered that it was relevant that there was no negotiation or discussion between the employee and the employer about the proposed involuntary roster.  The employee made some suggestions e.g. time in lieu during the working week, but these were ignored by the employer.

However, the primary reason why the Court considered that the employer had failed to establish that the imposition of further overtime on an involuntary basis was not unreasonable was because it failed provide evidence about how much overtime employee worked from time to time, either specifically or on an average.  The employer needed to produce this evidence to demonstrate that, given the total amount of overtime worked by employee, the imposition of additional involuntary overtime was not unreasonable.  Whether the imposition of a requirement to work 3 hours on a weekend, Saturday or a Sunday, or a public holiday, was reasonable would depend on the amount of overtime which an employee ordinarily works.

Lessons for employers

  • Before you discipline or dismiss an employee for refusing to work overtime, you need to verify that you can establish that the requirement to work those hours was not unreasonable.  Section 62 of the FW Act sets out some of the factors that are relevant to this question, but this is not an exhaustive list.
  • You need to be prepared to consult with an employee and listen to his or her objections about an overtime requirement before seeking to discipline an employee for not meeting it.