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If members are intending to refuse to work overtime on any shift the VAU recommends that as per clause 45.1(d) members give AV as much notice to the ‘relevant manager’ as reasonably practicable of their intention to refuse to work any required overtime.

The Victorian Ambulance Union Incorporated (VAU) is aware that members in both rural and metropolitan regions are being asked by Ambulance Victoria (AV) to work increasing amounts of overtime to meet operational demand.

Clause 45.1 of the Ambulance Victoria Enterprise Agreement 2020 (Agreement) provides guidance to both the employee and employer about the circumstances in which an:

• employer can request an employee to work reasonable overtime; and
• employee may refuse to work unreasonable overtime.

For your reference, clause 45.1 of the Agreement states the following:

Clause 45.1 – Requirement to work reasonable overtime

a)    Subject to clause 45.1(b), the Employer may require an employee to work reasonable overtime (including incidental and full shift overtime) at applicable overtime rates of pay.

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)     In determining whether the requirement to work overtime hours is unreasonable for the purposes of 45.1(b), the following must be taken into account by the employee and the Employer:

i. any risk to the employee’s health and safety from working the overtime including previous overtime worked;

ii. the employee’s personal circumstances including any family responsibilities;

iii. the needs of the workplace or enterprise including the Employer’s primary function to provide pre-hospital care and transport in an emergency setting;

iv. the notice (if any) given by the Employer of the overtime;

v. the notice given by the employee of his or her intention to refuse to work any required overtime;

vi. the usual patterns of work in the industry, or the part of an industry, in which the employee works;

vii. the nature of the employee’s role, and the employee’s level of responsibility;

viii. whether the additional hours are in accordance with averaging terms included in this Agreement; and

 ix. any other relevant matter.

 

d)    Notice given in accordance with clause 45.1(c)(v) should be given to the relevant manager and occur as soon as reasonably practicable and where applicable, prior to or at the commencement of the employee’s rostered shift.

e)    Subject to clause 45.1(f), where an employee considers a requirement to work overtime hours may be unreasonable, the employee must as soon as reasonably practicable, advise the Employer why the employee regards the additional hours as unreasonable and whether they intend to work the overtime. The discussion must take into account the circumstances set out in clause subclause 45.1(c).

f)      The discussion in clause 45.1(e) must not delay the employee responding to a code one or priority zero case. 

g)    Where an employee is required to work reasonable overtime, the Employer will then consider potential options to reduce the overtime hours or mitigate the impact of the overtime on the employee’s personal circumstances such as family responsibilities, including the dispatch of a back-up resource to the case.

As members can see from the extracted clause above, there is no definition of ‘unreasonable overtime’.

Notwithstanding this fact, there are factors which must be taken into account to determine whether the requirement to work overtime hours is unreasonable following a refusal by an employee to work these overtime hours.

Factors to be considered/Steps followed

– Determining whether requirement to work overtime is unreasonable

The circumstances in which AV’s request for an employee to work overtime will be considered unreasonable (following a refusal to work the overtime under clause 45.1(b)) varies on a case by case basis taking into account ALL the factors listed under clause 45.1(c). In effect, these factors must all be weighed up to determine whether the request to work overtime hours is unreasonable. For example, if you have children to pick up from school, the performance of 10 minutes of incidental overtime may be considered unreasonable when taking into account the your personal circumstances including family responsibilities and the amount of notice that you provided AV about needing to leave work at the end of shift to perform family/caring responsibilities (see further clause 45.1(d)).

If members are intending to refuse to work overtime on any shift the VAU recommends that as per clause 45.1(d) members give AV as much notice to the ‘relevant manager’ as reasonably practicable of their intention to refuse to work any required overtime. AV have not defined who the ‘relevant manager’ is for the purpose of this sub-clause, however we recommend that such notice is provided by employees directly to the Regional Manager or Regional Duty Manager (being managers with decision making). Communications Support Paramedics (CSP) and Duty Managers (DM) are not delegated the authority engage in the discussion referred to in clause 45.

– Have the discussion

Furthermore, the VAU notes that under clause 45.1(e) any employee intending to rely on clause 45.1 to refuse a request to work overtime on the basis that working such overtime would be unreasonable must have a discussion with AV notifying AV whether they intend to work the overtime and identify why the additional hours requested are unreasonable, with reference to all the matters listed in clause 45.1(c). Similarly, in considering whether the request for additional hours is reasonable/unreasonable, AV must engage in a discussion with the employee considering the factors set out in clause 45.1(c), provided that such a discussion does not delay response to a code one or priority zero case (clause 45.1(f)). VAU recommends that this discussion occurs between the employee and the Regional Manager or Regional Duty Manager.

The VAU notes that although employees do not have an unfettered right to refuse overtime, AV is obliged under the Agreement to have a discussion with each employee intending to refuse overtime and consider the factors in clause 45.1(c) to determine whether their request of an employee to work overtime is unreasonable. If members find that upon notifying AV of their intention to refuse to work overtime, AV are not engaging in discussion and considering the factors set out in clause 45.1(c) and are instead simply refuse the request, they should note the date, time and person to whom the request was made and report this to the VAU for further advice.

Additionally, in the event that you are required to work the overtime despite notifying AV of your intention to refuse to work overtime hours and discussing the factors in clause 45.1(c), AV must consider its options for reducing the overtime hours worked under clause 45.1(g) or mitigate the impact on your personal circumstances, for example, by dispatching a back-up resources to the case.

We strongly encourage members to understand, review and exercise their rights under this clause.

Please email [email protected] if you have any questions.

In solidarity