The Full Court of the Federal Court of Australia was recently required to decide whether an employee had a workplace right to refuse to perform higher duties at work. The Full Court determined that the employee did not have a workplace right to refuse higher duties. It set aside a declaration made by the Court below that the employer had taken adverse action against the worker because of his insistence that he could not be required to perform the higher duties. The case demonstrates how critical it is to ensure the documents forming the basis of the employment relationship are clearly drafted, constructed and implemented.
The Facts of the Case
Torren McMaster was a stevedore employed by Qube Ports Pty Ltd (‘Qube’). Pursuant to the terms of his employment, he was engaged under the terms of the applicable Enterprise Agreement and Modern Award at a particular pay rate. Qube directed him to perform higher duties at work on 7 June 2013, which included co-ordination of a gang of stevedores for the day. McMaster was to be paid at a higher level for performing the higher duties.
McMaster refused to comply with Qube’s direction, saying that his engagement at that particular grade gave him the right to refuse higher duties. After following a consultative process (which included the involvement of McMaster’s union), Qube terminated his employment for disobedience. McMaster commenced proceedings against Qube, claiming that it had taken adverse action by terminating his employment by reason that he had exercised a workplace right to refuse to perform the higher duties. At first instance, the Court found in McMaster’s favour.
The Decision at First Instance
The Court at first instance decided McMaster had a workplace right to refuse to perform higher duties at work. It based that decision on its interpretation of a particular clause of the employer’s Enterprise Agreement. That clause read:
Subject to the provisions of this Agreement, all employees are employed on the basis that each employee will carry out all work within their recognised and required competency as reasonably required by the Company. Nothing in this Agreement shall prevent the Company from directing an employee to perform any work for which they are appropriately skilled.
The Court concluded that the two sentences of the clause were repetitious and collectively meant that Qube was constrained to direct McMaster to work within his assigned grade. By inference, McMaster therefore had a workplace right to refuse to refuse to perform the higher duties.
Following from this, the Court concluded that Qube had taken adverse action against McMaster by terminating his employment by reason of his refusal to work the higher duties and declared that Qube had contravened section 340(1)(a) Fair Work Act 2009 (Cth). The Court rejected Qube’s argument that it did not intend to take adverse action for an unlawful purpose because it had a mistaken understanding of the law. Qube appealed this decision.
The Appeal Decision
The Full Court overruled the decision, concluding that the primary judge erred in construing the clause. Their Honours concluded that the two sentences built upon one another and had compound effect that:
The employees would be placed in a position that accorded with their recognised qualifications, skills and competencies and would be required to perform work at that level; but
If the employees were appropriately skilled and experienced to perform higher duties, Qube was entitled to lawfully and reasonably direct them to do so.
Accordingly McMaster did not have a workplace right to refuse to perform the higher duties.
The Court made no final decision concerning the second issue as to whether the lack of intention by Qube to take adverse action exculpated it from liability under section 340(1)(a). Each judge hinted at taking a different approach in the future.
This case is an example of the importance of clear and detailed drafting and interpretation of the terms of employment contracts, modern awards and enterprise agreements. At first instance the Court seized upon semantics of a clause that, on plain reading, appeared to have the opposite effect of permitting the employer to direct its employees to perform work as required.
The decision by the Full Court also serves as a reminder of the nature of employment contracts – that the employee contracts to provide skills and experience in the service of the employer. The reasoning adopted by the Court interprets the industrial instruments in light of the classic employment hallmarks of direction by the employer and obedience by the employee. It is implicit in the decision that higher courts will continue to recoil from any claim that the creation of modern workplace rights changes the inherent nature of employment as a contract of service.
This is not to say that every employment contract, modern award or enterprise agreement will be interpreted in the same way. Each case will be determined on its own facts, and the terms and drafting form part of that factual matrix.
When can an employee refuse to do higher duties?
Though, in this case, the Full Court concluded the employee did not have a workplace right to refuse to perform higher duties, the law recognises circumstances in which employees have no obligation to comply with a direction to perform higher duties. Example include:
- When the direction to perform higher duties may cause the employee to breach a professional obligation;
- If performance of the higher duties would create an unacceptable risk to the health and safety of the employee or other workers;
- If proper performance of the higher duties would require the employee to work unreasonable hours in excess of 38 hours per week (or as any modern award or enterprise agreement might provide);
- If the direction to perform higher duties is given for an ulterior purpose which contravenes one of the general protections; or
- If the employee’s contract, applicable modern award or enterprise agreement provides that an employee may refuse to perform higher duties.
In most cases an employee will not be entitled to refuse to perform higher duties only because:
- Someone better qualified is available to perform them;
- It would inconvenience the employee (especially when the employer will cover any extra costs to the employee); or
- The employee disagrees with the manager or supervisor’s decision.
If you have any questions about how this case might apply to your organisation, please do not hesitate to contact Chris Mills via firstname.lastname@example.org or on (07) 3837 3600.