What is reasonable overtime?

• Do you have employees in your business?
• Are they expected to work outside of their set hours?
• Do you know what the law says in relation to this kind of overtime?

The Fair Work Commission has ordered an employer to pay eight weeks’ wages to an apprentice who was found to have been unfairly dismissed after he refused to work additional hours on a Sunday. This case serves as a reminder to employers who expect their employees to work additional hours about their obligations towards their employees, and when overtime is not considered reasonable.

When can I make my employees work additional hours or overtime?

The Fair Work Act 2009 (Cth) (‘the Act’) states that employees may be required to work additional hours, beyond ordinary hours of work or outside the spread of ordinary hours, only where the request is reasonable. Where the request is unreasonable, an employee may refuse to work those hours.

To determine whether the request is unreasonable the following factors will be relevant:

• Whether there is a risk to an employee’s health or safety as a result of working the additional hours;
• The needs of the workplace at the time;
• The employee’s family responsibilities (e.g. carer obligations);
• Whether the employee is entitled to overtime payments;
• The seniority and responsibility of the employee;
• How much notice was given to the employee;
• If the employee has ever stated that they are unable to ever work overtime; and
• The usual patterns of work in the industry.

What did the Court say?

Currie v The Trustee for B&S Hambleton Trust T/A Perfect Coat Painting [2019] FWC 7462 arose from the dismissal of Mr Currie from Perfect Coat Painting.

On 9 April 2019 Mr Currie, a second-year apprentice painter, was informed by his manager, and co-owner of the business, that he would be required to work additional hours on Saturday and Sunday that week in order to complete a job before the deadline passed. On 12 April 2019, Mr Currie advised his employer by text message that he could work “a big day” on the Saturday but was unable to work Sunday. Mr Currie had worked six out of seven days that week.

His manager responded and said “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”. Mr Currie did not attend work on Sunday and his manager then dismissed him via a text message reading “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… was worth losing your job over”.

Perfect Coat Painting argued that Mr Currie had failed to follow a reasonable and lawful direction and therefore it had reason to dismiss him. It was further argued that the overtime request was reasonable as Mr Currie had not worked the previous weekend, would not be working the following weekend, and Perfect Coat Painting was entitled to request Mr Currie work additional hours.

Mr Currie argued that the dismissal was unfair and unreasonable, and the direction to work overtime was also unreasonable in all of the circumstances and with consideration to the factors as set out above. Mr Currie also never received penalty rates for any overtime he worked throughout his employment, including work performed on weekends.

The Commission found that there was no reasonable basis on which Perfect Coat Painting could terminate Mr Currie’s employment. Understandably, there was pressure on them to meet their deadline, however it was open to Mr Currie to refuse to work on Sunday, and given that he was a junior employee, Perfect Coat Painting should not have been as reliant upon him as it was.

Further, the overtime request was unreasonable given that Mr Currie:

• Had already worked 6 days that week;
• Had worked additional hours on Saturday; and
• Was not being paid penalty rates in accordance with the applicable award.

The Commissioner labelled the employer’s submissions as to its understanding of reasonable overtime as “incredibly misguided”. The Commissioner found the employer’s conduct “extraordinarily unreasonable… [requiring] him to work repeated Saturdays and Sundays without the payment of penalty rates after having completed his ordinary hours during the week.”

Another point of criticism levelled at the employer in this case was that as Mr Currie was an apprentice, Perfect Coat Painting had more responsibilities to him. The Court was concerned by a lack of effort from Perfect Coat Painting to salvage the relationship with Mr Currie given his young age, and his inexperience in the workforce.

Perfect Coat Painting was then ordered to pay 8 weeks’ wages as compensation for the unfair dismissal including 2 weeks to compensate the lack of notice provided to Mr Currie on termination of his employment.

Lessons to be learned?

1. Ensure that you are aware of any applicable awards that may affect your employees. You can use the Fair Work Ombudsman’s search facility to determine whether you or your employees are covered by an award or not.
2. If you expect your employees to work reasonable overtime we suggest that you:
   1. Set out your expectations in relation to overtime with your employees in the relevant employment agreement;
   2. Provide plenty of notice to the relevant employee(s) in advance when possible; and
   3. Give consideration to the factors set out above in determining whether the request is reasonable.
3. Unless the conduct giving rise to the termination of an employee is a serious and persistent breach of their obligations, ensure that you follow a clear disciplinary process with all staff, including performance management meetings, and maintain clear written records of any such meetings or disciplinary action taken against employees.

For additional information on reasonable overtime and employment issues generally, visit the Fair Work Ombudsman’s website here or read the judgment.