Under the Fair Work Act’s (FW Act’s) National Employment Standards (NES), an employer can request employees to work reasonable additional hours paid at the normal rate.

However, the employee has a right to refuse to work the additional hours if they are unreasonable.

What constitues ‘unreasonable’ overtime?

Additional hours are unreasonable when:

• The additional hours would pose a threat to the employee’s health and safety, e.g. fatigue or stress;
• The additional hours would affect the employee’s personal circumstances, e.g. family responsibilities;
• You have not given the employee reasonable notice; or
• The additional hours exceed the maximum ordinary working hours and no averaging period is in place.

In Brown v Premier Pet (2012), an employee at an aquarium fish wholesaler claimed his employer had contravened the FW Act after he was dismissed for refusing to work mandatory overtime.

Staff were initially offered overtime on a voluntary basis, but a few months into the worker’s employment he was given 14 days’ notice that he would be required to work three additional hours on a separate, non-trading day (a Saturday, Sunday or Public Holiday), once every 7-10 non-trading days.

Because the employee had commitments outside of work, he objected and asked if he could be given time in lieu during the week instead. The employer refused to discuss this proposal and threatened him with dismissal.

After the employee referred the matter to Fair Work Australia (now the Fair Work Commission), his employment was terminated.

The employer cited in Court that he was dismissed as he had refused a direction to work reasonable overtime hours.

However, the employee claimed that as the hours were unreasonable, refusing to work the involuntary overtime was his workplace right, and he had alleged that the employer had taken adverse action against him.

When a worker makes a general protections claim, the FW Act requires the Court to assume that the alleged adverse action was taken for the reason put forward by the employee, unless the employer is able to prove otherwise.

The Court found that the employer was unable to demonstrate that their requirement to work additional hours was reasonable and ordered that the employee be reinstated.

In making its decision, the Court considered:

• The employee’s personal circumstances, including his family responsibilities: The employee lived with his mother who required his assistance and he also conducted a business as an internet retailer of swords and wanted to devote his time to that. The employee also didn’t want to work more than 38 hours a week because of the effect it might have on his obligation to make contributions from his income to his trustee in bankruptcy.

• Lack of negotiation or discussion about the proposed involuntary roster: The employer did not attempt to discuss or negotiate the issue with the employee, nor did it entertain any of the employee’s suggestions (e.g. taking time in lieu during the week).

• The employer’s failure to provide evidence of the number of overtime employees at the business usually worked: By failing to produce this evidence, the employer couldn’t demonstrate that requiring the employee to work involuntary overtime was reasonable because the Court had nothing to compare it to.

The employer later appealed the judgment, which was dismissed.

Lessons for employers

You should not discipline or dismiss an employee for refusing to work overtime without being able to prove that it is reasonable to require the employee to work those hours.

Consult with an employee and take into account their objections about a mandatory overtime requirement before taking any disciplinary action against them for not meeting it.

In some situations, you may be able to dismiss an employee for serious misconduct if they fail to comply with a lawful and reasonable direction to work a reasonable amount of overtime, but you must know the law.