Overtime in the fair work system

Sec 62 of the Fair Work Act 2009 provides that an employer can request or require:

  • a full-time employee to work more than 38 hours per week; or
  • a part-time employee to work more than their ordinary hours of work;

if the request is reasonable. For a full time employee the maximum hours each week is 38 and for an employee who is a full time employee the hours are the lesser of 38 and the employee’s ordinary hours in a week.

The Act provides that an employer can request that an employee works reasonable overtime. According to the Act overtime can be reasonable so long if the following are taken into account;

any risk to health and safety from working the extra hours

the employee’s personal situation, including their family responsibilities

the workplace’s needs

if the employee is entitled to receive overtime payments or penalty rates for working the extra hours

if they are paid at a higher rate on the understanding that they work some overtime

if the employee was given enough notice that they may have to work overtime

if the employee has already stated they can’t ever work overtime

the usual patterns of work in the industry.

An employee can refuse to work overtime, if the request is unreasonable.

In Currie v The Trustee for B&S Hambleton Trust T/A Perfect Coat Painting [2019] FWC 7462 the Fair Work Commission found that a dismissal of an employee, who was an apprentice for refusing to work extra hours on a Sunday was unfair and ordered the employer to pay compensation of 8 weeks’ remuneration.

The employer argued that it had a valid reason for the dismissal because the employee had refused to follow a reasonable and lawful direction and that it was reasonable to the employee to work on Sunday because it had not required him to work the previous weekend and the employee was due to have a four-day weekend the following week.

However Commissioner Hunt found that the employer did not have a valid reason for dismissal because it was not reasonable to require Mr Currie to work on Sunday since amongst other things the employee had already worked six days that week, he had already worked additional hours on the Saturday, that he was  junior employee and the employer should not have been so dependent on him, and that the employer had additional responsibilities to him because he was an apprentice. The Commissioner was also influenced by the fact that under the modern award the employee was entitled to receive overtime payments including penalty rates for working the additional hours but was instead paid his ordinary rate for additional hours worked.

Accordingly the Commissioner held that that the employee’s dismissal was unfair, unjust and unreasonable and that the employer should have done more to ‘get the apprenticeship and employment relationship back on track’.

Currie v The Trustee for B&S Hambleton Trust T/A Perfect Coat Painting [2019] FWC 7462