Overtime ban

The acting Governor of New Jersey, Donald T. DiFrancesco, signed off on a law that became effective in 2003 that protected nurses engaged in overtime bans.[7] It stipulated that nurses would not be acting criminally if they refused to engage in work beyond their contracted 40 hour week.[7] Only in “emergency circumstances” could employers refuse to abide by this law, defined as "an unpredictable or unavoidable occurrence at (an) unscheduled interval relating to health care delivery that requires immediate action".[7] The law was first effective for nurses in acute care and after six months was extended to other facilities including nursing homes.[7] Jeannernarie Otersen, a healthcare union advocate, described the law as the “first and strongest” in the country, as it would allow nurses to engage in industrial action without breaking the law or fearing for the loss of their jobs.[7]

In May 2000, pilots who refused to work overtime meant that United Airlines had to cancel approximately 150 flights throughout the US.[8] The pilots were motivated to enact the ban because they felt that issues regarding their contracts - including problems related to “wages, job security and benefits” – had not been satisfactorily addressed by United Airlines during the negotiation period.[8] The Air Line Association (ALA), the union responsible for mobilising pilots, commented that they warned the airline “for months of an imminent pilot shortage”.[8]

South African law encourages workers to reach settlements with employers before carrying out industrial actions of any sort, including overtime bans.[2] It is a criminal offence for employees to engage in an overtime ban, or any sort of strike, without first exhausting the ‘statutory dispute settlement’ options available to them, which include the option to settle negotiations in court.[2] However, if this fails, South African workers may conduct overtime bans without violating the law and are actually protected by it.[2] The South African law concerning overtime bans has evolved from judgments handed down in pivotal cases, called case law. This case law mostly surrounds the interpretation of the Labour Relations Act 28 of 1956 and a particular few of its sections. In the case of Macsteel (Pty) Ltd v National Union of Metalworkers of SA & Others (1989) 10 ILJ 285 (IC), employees were found to be using an overtime ban as an "unfair labour practice" because it was being used to "soften up" the employer prior to negotiations being reached during statutory dispute settlement.[9] In the case of Silver Oak Tanneries t/a Silverton Tannery v Garment & Allied Workers Union (October 1989 (case NH 12/3/286) however, the court found that "preventing an overtime ban would amount to compelling an employee to commit a criminal offence… forcing him to work without consent".[9] Context is therefore of paramount importance to South African courts when they determine the legality of an overtime ban.

In Nordic countries, being Sweden, Denmark, Norway and Finland, a high percentage of the population is employed by the public sector and belong to centralised, nationwide trade unions founded in the 19th and 20th centuries.[10] The Unions are typically well organised and hold a great deal of power over employers, who understand that employees are loyal to their union and are likely to carry out the industrial action that they threaten.[10] The legislation in each of the countries aims to limit industrial conflict. For this reason, unions and employers are highly motivated to settle disputes through negotiation before any form of industrial action, including overtime bans, are implemented.[10] In the early 20th century, each of the countries established mediation institutions to help unions and employers reach agreements. Where this fails, overtime bans are permitted by law and intervention by the government is very rare.[10]

In February 2020, the Finnish airline Finnair experienced an overtime ban imposed by workers of the aviation workers’ union AIU.[11] Passengers who had scheduled flights were advised to pack minimal luggage that could fit in overhead storage space because staff responsible for baggage handling duties were not engaging in overtime duties.[11] Passengers were also asked to arrive earlier than usual for flights given the staff shortages.[11] The ban lasted three days following a breakdown in communication between staff and Finnair who “struggled to find common ground on a new collective bargaining agreement”.[11] The previous employment agreement that had stipulated “wages and other terms and conditions” had just expired.[11]

The Clearing Bank Union (CBU) was responsible for mobilising workers in the financial sector to threaten and enact a number of successful overtime bans between 1985 and 1989.[12] The union formed after the Banking, Insurance and Finance unions at big clearing banks including NatWest, Barclays, Lloyds and Midland joined forces.[12] In 1985, the CBU voted in favour of an overtime ban to protest about their pay. The threat of the ban was sufficient to cause the banks to increase their pay offer which was accepted.[12] In 1987, 70,000 members in Lloyds, NatWest and Barclays decided to enact an overtime ban for 16 weeks following unsuccessful negotiations with management for a pay rise.[12] Workers at the bank TSB secured a pay rise during negotiations, but joined the overtime ban when the company “increased its services without increasing its staff levels”.[12] Lloyds improved its workers’ pay conditions so that they matched those being offered at Midland. The other banks came to agreements that satisfied the union and were accepted by workers who then returned to work as usual.[12]

In Australia, laws governing the legality of overtime bans are written in legislation. They are detailed in the Fair Work Act 2009 which aims to promote "productivity and fairness" in the workplace.[13] It stipulates that employers cannot withhold wages from employees who engage in overtime bans if they are not breaking their contractual obligations.[13] Unless overtime work is overtly agreed upon and in the employee's contract, they are free to decline to engage in overtime work.[13]

From 1908, a Sydney based engineering company called Mort's Dock became the subject of multiple overtime bans.[14] They were imposed by employees who had a "long history of organisation and mobilisation".[14] They formed two unions: The Amalgamated Society of Engineers and the Federated Society of Boilermakers. Mort's Dock was initially hiring and dismissing its workers ‘job-to-job’, meaning that most workers “experienced irregular and unstable patterns of employment”.[14] The practice was for workers to line up each morning in the hope of securing work for that day.[14] Mort's Dock also privileged a small group of workers with large amounts of overtime work so that they could avoid hiring more hands throughout the day.[14] By consistently imposing overtime bans, the unions "forced Mort’s Dock to employ more workers".[14] Leadership within the union was of utmost importance in achieving this result. Falkinham, who was the president of the Boilermakers Society, was responsible for mobilising workers to line up for work three times a day.[14] This prevented the company from being able to complain of a shortage of workers; an excuse that they could have used to justify giving all of the overtime work to only a few employees.[14] In 1917, when these workers were denied a wage increase, the two unions worked together to impose overtime bans on night shift work which they continued until 1919 when Mort's Dock increased their wage.[14] The bans are described as being examples of strong collective workforce action that effectively undermined the company's ability to treat its workers unfairly.[14]