In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation, two long serving Postal Delivery Officers (PDOs) refused to work overtime because of safety concerns and family obligations. Each employee received a warning in for their refusal. The employees’ union commenced proceedings before the Fair Work Commission alleging that the disciplinary actions of Australia Post were inconsistent with the applicable enterprise agreement. The Commission heard that:

  1.  Employees at the delivery centre were generally discontented about the large amount of overtime they were required to work, and on the day in question, nine out of approximately 41 PDOs were absent and approximately 18 PDOs had indicated they were unable to work after 2.30pm that day; 
  2.  Two employees failed to complete their delivery duties and instead, returned bundles of undelivered mail to the delivery centre. Each employee subsequently received a warning for this conduct; 
  3.  Each employee had worked significant overtime during the preceding period with one employee working 29 hours of overtime over the preceding 11 days; and
  4.  The applicable enterprise agreement required employees to work reasonable overtime provided that an employee could refuse to work overtime if it would result in the employee working unreasonable hours having regard to various matters including the risk to health and safety and the employee's personal circumstances.

The Commission found that the disciplinary steps taken by Australia Post were not consistent with the enterprise agreement and noted that the employees were entitled to refuse overtime based on the hours worked, the risk to their health and safety and their personal circumstances. In reaching that decision, the Commission noted that:

  • Both employees had reasonable grounds to refuse working additional overtime because doing so could reasonably be perceived to pose a risk to health and safety having regard to the large amount of overtime each employee had worked in the recent past; and
  • One employee had strong personal circumstance and family responsibility reasons for not wishing to work additional overtime on the day in question and the employer was aware of those issues.

Fair Work Act 2009 and maximum weekly hours

In relation to maximum weekly hours, the Fair Work Act provides that:

  • an employer must not request or require that an employee work more than 38 hours per week unless the additional hours are reasonable; and
  • an employee may refuse to work unreasonable additional hours.

Whether or not additional hours are reasonable will depend on the circumstances including:

  1.  any risk to employee health and safety from working the additional hours; 
  2.  the employee's personal circumstances, including family responsibilities; 
  3.  the needs of the workplace or enterprise in which the employee is employed; 
  4.  whether the employee is entitled to receive overtime payments or other compensation for, or a level of remuneration that reflects an expectation of, working additional hours; 
  5.  any notice given by the employer of any request or requirement to work overtime; 
  6.  any notice given by the employee of their intention to refuse to work overtime;  
  7.  the nature of the employee's role and level of responsibility; and
  8.  any other relevant matter. 

Lessons for employers

Employers should consider the above factors before asking employees to work overtime or taking steps against an employee who refuses to work overtime. Failure to properly consider these factors could expose an employer to penalties for breaching the Fair Work Act and potentially, an application to the Fair Work Commission in relation to any disciplinary action taken, as occurred in the case referred to above.

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