09 December 2020
Overtime or overload? When is working on weekends part of the job?
We all know how precious our weekends are – for well-earned downtime and respite from work, but many of us also spend time on weekends caring for children and other family members.
In a recent decision, Commissioner Webster of the Industrial Relations Commission of NSW provided local councils with helpful guidance on their ability to make employees work overtime on weekends when they
didn’t want to.
The case deals with the requirement to work “reasonable overtime” in the Local Government Award 2017 (the Award). The Commission applied a common sense approach that provides comfort for councils in managing the delivery of essential services, many of which are available to their communities on weekends.
The case and what it means for you
Do I really have to do overtime?
Mr Robinson had worked in the Hornsby Shire Council cleansing and waste unit for 19 years. During that period, employees were required to work regular weekend overtime shifts to ensure that amenities provided by Council were maintained daily. Employees routinely performed three weekend-morning overtime shifts a month, each lasting about five hours.
Following a return to work after a period of absence, Mr Robinson advised his manager that he no longer wished to do regular weekend overtime. Among his reasons was a desire to care for his granddaughter, who had a medical condition, and provide respite for his daughter and son-in-law.
Council considered Mr Robinson’s request and decided that its requirement for regular weekend overtime was reasonable. As a compromise, Council offered to reduce his overtime shifts to two shifts per month.
Mr Robinson wasn’t happy with Council’s decision and the union lodged a dispute.
The overtime requirement – “perfect opposites”
In resolving the dispute, Commissioner Webster was required to interpret clause 19(viii) of the Award, which provides:
(a) Subject to paragraph (b), the employer may require an employee to work reasonable overtime at overtime rates.
(b) An employee may refuse to work overtime in circumstances where the working of such overtime would result in the employee working hours which are unreasonable.
(c) For the purposes of paragraph (b), what is unreasonable or otherwise will be determined having regard to:
any risk to the employee;
the employee’s personal circumstances including any family and carer responsibilities;
the needs of the workplace;
the notice, if any, given by the employer of
the overtime and by the employee of their intention to refuse it; and
any other matter.
Commissioner Webster confirmed that the clause confirms the “well-established proposition that the employer can indeed require an employee to undertake reasonable overtime”, but also that at the same time employees have a “concurrent right” to refuse hours if they are unreasonable.
The union argued that clause 19(viii) involved a two-step approach. First, one needs to work out if the overtime is reasonable, and if it is, whether the working hours are unreasonable (having regard to clause 19(viii)(c)). The Commission disagreed, stating:
What is evident from the dictionary definition of both “reasonable” and “unreasonable” is that they are perfect opposites. It defies reason that overtime can be both “reasonable” and the overtime hours “unreasonable” at the same time. The analysis in the context of whether overtime is “reasonable” or the hours “unreasonable” requires an examination of the same matters and that need only occur once to arrive at a conclusion whether the employee may refuse to do the relevant overtime. This interpretation of the clause is consistent with its purpose, namely, to balance the interests of the parties to the employment relationship to ensure that the employer may require overtime to be undertaken, but only if the requirement is reasonable and not unreasonable.
Commissioner Webster held that the requirement to work two early morning, five-hour Saturday overtime shifts each month was reasonable, and that Mr Robinson’s refusal to perform those hours was unreasonable.
The Commissioner accepted that it was important the work be performed each day of the week and, therefore, that overtime was required. She said the requirement was not excessive and “does not warrant the engagement of a new and separate workforce to undertake the eight weekend shifts required”. Commissioner Webster also noted that:
Mr Robinson had worked under these conditions for a lengthy period and had recently signed a position description which expressly provided that the overtime was required on weekends in his position; and
In order to assist Mr Robinson, Council had offered a compromise of its usual position of requiring staff to work three regular weekend overtime shifts a month.
While she was sympathetic to Mr Robinson’s circumstances and his caring obligations, they had to be balanced against Council’s operational requirements and the impact Mr Robinson’s refusal would have on other staff members. Mr Robinson was not the primary carer of his granddaughter and only wanted to be available for the possibility he may be needed. Mr Robinson remained available to care for his granddaughter all week, other than the five hours early on a Saturday morning.
Guidance for councils
The decision is particularly useful as, to date, there has been limited consideration of the requirement to work reasonable overtime. The decision:
Confirms that councils can require employees to undertake reasonable overtime
Highlights the benefit of the position description identifying the need to work overtime
Suggests that an existing pattern of requiring overtime may also be relevant.
While ‘carer responsibilities’ should not be ignored, they cannot be used as a shield to refuse to perform overtime. The employment contract and employee obligations must be discharged to the greatest extent possible, and as always it is about finding a workable balance – something Mr Robinson unfortunately refused to entertain.
In determining what is “reasonable overtime” versus “unreasonable hours” there is an attempt to try and balance the needs of the council (including its operational requirements and the impact on other staff) against the employee’s personal circumstances. The balance results in one answer.
Author: Nick Leon
Contributing partner: Darren Gardner