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Winter 2002

Unions win historic restrictions on forced overtime

Australian employees cannot be forced to work unreasonable hours of work after the Australian Industrial Relations Commission ruling on the ACTU’s Reasonable Hours Test Case today.

A Full Bench of the Commission headed by AIRC President Justice Geoffrey Giudice ruled that an employee can refuse to work overtime if it is unreasonable. Unreasonable overtime may be determined by considering an employee's family responsibility and their health and safety. ACTU President Sharan Burrow welcomed the decision, saying it was a significant breakthrough for employees struggling to balance their work and family lives.

"As a result of the Commission's decision, Australian employees have more rights to help them balance their work and family lives. The Full Bench has recognised the critical need to address the continuing rise in working time in Australia, which has some of the longest and fastest growing hours of work in the developed world.

"Employees can no longer be forced against their will to work unreasonable hours. People can no longer keep their heads in the sand on this issue," Ms Burrow said.

"The ACTU is pleased that its Reasonable Hours campaign has helped put the issue of work-life balance in the centre of the national debate, with John Howard last week describing it as the most important social debate of our time."

What the Industrial Relation Commission said

The evidence satisfies us that working time arrangements and patterns of hours worked have changed significantly in Australia over recent decades.

Weekly hours worked by fulltime employees have increased over the past two decades from 38.2 in August 1982 to 41.3 in August 2001. There has also been a substantial reduction in the proportion of workers who work what have traditionally been referred to as "standard hours".

Extended hours are worked across a range of occupations, industries and income levels.

A significant proportion of employees work overtime hours which are unpaid in the sense that the overtime is not directly compensated by a monetary payment linked to the number of overtime hours worked.

We generally accept the evidence that Australia (with the United Kingdom and the United States) is one of the few OECD countries where there is a trend towards longer full-time working hours and that, allowing for variations in the part-time share, Australia has average working hours that seem longer than most other OECD countries, with average annual hours tending towards the very top of the rankings, comparable with the United States, although not as high as Korea.

The evidence satisfies us that the working of long hours is likely to give rise to a risk of fatigue and to adverse health consequences, but that a number of factors, including non-work factors, will impact on whether the number of hours worked cause fatigue or such consequences. The relationship between working hours and family and community life is an important issue. In some cases, earnings from longer working hours relieve the stress resulting from financial difficulties. In other cases, long working hours have negative consequences. Whether negative consequences occur often depends on a range of factors such as the extent of an employee's family responsibilities and his or her engagement in community activities.

We accept that fatigued employees may be a risk to the public and that there are public health costs associated with disease which may arise from the working of long hours. Having considered the evidence and submissions, we have decided award a test case provision of a limited kind.

We have decided to award, as a test case standard, a provision spelling out an employee's rights with respect to a requirement to work overtime.

We have decided to award a test case provision which will confer a right on an employee to refuse to work overtime in circumstances where the working of such overtime would result in the employee working unreasonable hours.

It will permit the employee's ordinary hours to be taken into account in deciding whether overtime is unreasonable, but the right of refusal it confers will operate only in relation to overtime.

The provision is only intended to be included in awards that specify ordinary time and provide for overtime. It will include a reference to the well established right of an employer to require an employee to work reasonable overtime. The provision we have decided on is the following:

• an employer may require an employee to work reasonable overtime at overtime rates,
• 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 having regard to:

  any risk to employee health and safety;

  the employee's personal circumstances including any family responsibilities;

  the needs of the workplace or enterprise;

  the notice (if any) given by the employer of the overtime and by the employee of his or her intention to refuse it; and

  any other relevant matter.

  
  

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