If you’re a small business owner and need to ‘get the job done’, sometimes it may feel as though employee overtime is the only option. 

When you’re requesting that an employee work overtime, it must be a reasonable request. If it is unreasonable, your employee may refuse to work overtime. 

Dismissing an employee for refusing to work overtime is a highly unlikely option following the 2019 Currie Case

As a small business owner, it is vital that you consider whether employee overtime is the best option. 

Read on to better understand what you need to know about your employees working overtime.

What Is Overtime Work?

According to the Fair Work Ombudsman

  • Overtime work is work performed outside of the ordinary hours listed in an award or agreement and
  • Overtime work is usually paid at a higher rate. 

Further, overtime work includes: 

  • Work done beyond the ordinary hours of work 
  • Work done outside the agreed number of hours and 
  • Work done outside the spread of ordinary hours
    • For example:
      •  9am-5pm.

Can Employees Be Made To Work Overtime? 

In short, no. 

However, in accordance with the Fair Work Act 2009 (Cth), an employer can request that an employee works reasonable overtime. 

Reasonable overtime can be achieved so long as the following are taken into consideration: 

  • Any risk to your employees’ health and safety from working extra hours 
  • Your employees’ personal situation, including their family responsibilities 
  • Your workplace’s needs 
  • If your employee is entitled to overtime pay or penalty rates for working extra hours 
  • If your employee is paid at a higher rate on the understanding that they work overtime 
  • If you gave your employee enough notice that they may have to work overtime 
  • If your employee has already stated that they can’t ever work overtime 
  • The usual patterns of work in your industry

If you fail to take into account the above, your request for your employee to work overtime may be unreasonable. 

If your request to work overtime is unreasonable, then your employee can refuse to work overtime. 

What Else Should I Consider When Working An Employee Overtime?

If you have established that it is reasonable to request your employee to work overtime, that is great! However, there are still some other things you should consider. 

1. Higher Pay For Working Overtime 

Usually, employees are paid at a higher rate for working over time. 

If overtime rates apply to you and your employees, it will be dependent on what award, enterprise agreement or other registered agreement applies. 

You can search whether overtime applies in your award here.

Managing Health And Safety 

2. Managing Health And Safety

Working long hours can be taxing on your employees’ health and safety. 

SafeWork Australia encourages appropriate break times to ensure your employees health and safety. 

It is important to continuously monitor the work environment to best ensure your employees health and safety when working overtime. 

Can I Dismiss An Employee If They Refuse To Work Overtime?

The simple answer is no.

In the case of Currie v The Trustee for B&S Hambleton Trust T/A Perfect Coat Painting it was held that a 2nd year apprentice, Mr Currie, was unfairly dismissed for refusing to work overtime on a Sunday. 

The Commissioner found that it was not reasonable to require Mr Currie to work on the Sunday after already having worked six days that week and overtime on the Saturday. 

In January 2020, the Fair Work Commission ordered Mr Currie’s former employer, Perfect Coat Painting, to pay Mr Currie eight weeks’ wage. 

Currie v The Trustee for B&S Hambleton Trust T/A Perfect Coat Painting not only highlights that it is unreasonable to dismiss an employee for refusing to work overtime but, too, the importance of understanding when it is reasonable to ask your employees to work overtime. 

Unless your employee has engaged in conduct that seriously breaches their employee obligations, dismissing your employee for refusing to work overtime is a highly unlikely option. 

Is Making Your Employee Work Overtime The Best Option? 

While having your employee work overtime might get the job done, it is important to assess the adverse impacts of working overtime. 

Working overtime can decrease productivity and efficiency. It can also lead to significant stress and take away from your employees work-life balance. 

Here, it is important to assess how often your employee works overtime. If they are working overtime as a one off, it is unlikely to impact your employee to a significant extent. However, if your employee works overtime persistently, even if it is reasonable, it is important to consider the impacts it may be having. 

Further, working overtime is sometimes associated with job dissatisfaction. Sustaining a positive work environment with high job satisfaction increases productivity and success for your business. 

It is vital that you are aware of the impacts associated with working overtime to ensure the sustainability and success of your employees and business. 

Summary 

If you need your employee to work overtime it is important you take the following steps: 

  1. Take into consideration whether it would be reasonable to request your employee to work overtime
  2. Ensure the continuous health and safety of your employee when working overtime
  3. Determine whether your employee is entitled to a higher pay rate for working overtime 

Further: 

  • If your request for your employee to work overtime is unreasonable, they may refuse to work overtime
  • You can not dismiss an employee for refusing to work overtime 
  • Consider whether making your employee work overtime is the best option for your employees and your business

Need More Help? 

Reach out to our team for a free, no-obligations chat at team@sprintlaw.com.au or 1800 730 617.

About Sprintlaw

Sprintlaw is a new type of law firm that operates completely online and on a fixed-fee basis. We’re on a mission to make quality legal services faster, simpler and more affordable for small business owners and entrepreneurs.

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