The adverse action provision of the Fair Work Act is relatively new on the industrial relations landscape, and a new decision has put significant qualifications around this clause of the legislation.
In Brown v Premier Pet t/a Bay Fish  FMCA 1089, the Federal Magistrates’ Court ordered the employer to reinstate the worker they had dismissed for refusing to work compulsory rostered overtime. The request was that the employee work three hours additional overtime, outside of normal trading hours, once every seven to 10 non-trading days. In this particular case, the employee was successful in claiming that he experienced adverse action as a result of exercising his workplace right to refuse to work the stipulated overtime.
Under the Fair Work Act, employers may require workers to work ‘reasonable’ additional hours, though exactly what exactly would constitute a reasonable request has been left largely for case law to determine.
In this case, the employee was given 14 days’ notice of a proposed new roster. While the employee was not unwilling to work some overtime and already did so, he was only in a position to work a 38 hour a week job, with only occasional overtime. He was prepared to work some weekends in exchange for time in lieu (as authorised by the applicable award), but after negotiating the employer and employee were unable to reach agreement. Additionally, the worker was a bankrupt and had concerns about the impact that the additional work might have on his liability to make contributions to his bankrupt estate.
As a result the court agreed that the worker refused to work additional overtime on legitimate grounds. According to case commentary by Andrew Tobin, partner at Hopgood Ganim, the decision yields important lessons for employers.
An employer’s right to require an employee to work ‘reasonable additional hours’ should be exercised with caution.
Where a dispute arises – at least in the context of a dispute under the general protections provisions of the Fair Work Act 2009 – the onus will not be on the worker to show that a requirement to work additional hours is unreasonable. Rather, the employer will need to show that the requirement is reasonable.
When intractable disputes arise about a requirement to work additional hours, the employer should first explore options to resolve the dispute rather than opting to dismiss the employee for misconduct. The options available will vary according to the circumstances and the applicable industrial arrangements.