Most Read Contributor in Australia, September 2016
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 ( 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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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