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Full Court clarifies there must be real choice for employees to work on a public holiday

By Michaela Biggins

• 06 December 2023 • 4 min read
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Lessons learned from Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51

­With the upcoming Christmas and New Year holidays, a decision of the Full Federal Court provides a timely reminder to employers navigating rostering arrangements on public holidays, particularly in industries where the critical nature of the business means that it is vital that employees work on public holidays.

The context

In the case of CFMEU v OS MCAP Pty Ltd, the employer is in the mining industry and required some of its mine workers to work their normal shifts on Christmas Day and Boxing Day.

The challenge

It was alleged that by making it a requirement, the employer had breached the employees’ entitlement to be absent on a public holiday under the National Employment Standards in the Fair Work Act 2009. While employees cannot typically be required to work public holidays, an employer may ‘request’ an employee work on a public holiday. If an employer’s request is ‘reasonable’ in all of the circumstances, an employee can be required to work on a public holiday. But, the employee can “reasonably refuse” to work on that day. However, in this case, the employer did not make a request and simply rostered the employees on their usual shifts, not providing the employees with any opportunity to either accept or decline to work on those days.

The decision

At first instance, it was found the employer had made a valid ‘request’ that the employees work on those public holidays. In overturning the initial decision, the Full Court found that because the employer had not given the employees a choice as to whether to work the public holidays or not, it had not made a ‘request’ within the meaning of the Fair Work Act. This was found to be the case despite the employees’ contracts expressly stating they may be required to work on public holidays. The employer was held to be in breach of the FWA for requiring the employees to work on the public holidays and liable for a penalty.

While the employer sought special leave to appeal the decision, this was rejected by the High Court. As at the date of this publication, the matter has returned to the Federal Court to determine remedy and penalties.

Key takeaways for employers

What steps must an employer follow if they need an employee to work a public holiday?

The employer should write to those employees requesting they work on that day as far in advance of the relevant public holiday as possible to provide employees time to consider the request. The request should also ideally set out why the employer considers the request to be reasonable, in light of its business needs.

What if an employer needs an employee to work on a public holiday for operational reasons?

Regardless of the reasons for needing an employee to work on a public holiday, an employer must ‘request’ that the employee do so. In saying that, if an employer provides critical services or it would be desirable that the employer remains open on a public holiday, this would indicate that such a request may be ‘reasonable’. If the employer’s request is ‘reasonable,’ the employee can be required to work on that day unless the employee has reasonable grounds in the circumstances to refuse to do so.

What if the contract says an employee may be required to work on a public holiday?

Employers cannot simply rely on a contractual term which provides an employee may be required to work on a public holiday. Such a requirement will not constitute a ‘request’ for the purposes of the Fair Work Act. The obligation on employers to request that an employee work on a public holiday applies regardless of any contractual obligation to work on that day.

Can an employer still roster employees to work public holidays?

An employer can still have a roster that includes public holidays. However, the employer should ask an employee if they are willing to work on a specific public holiday before finalising the roster. A general standing request that an employee works all public holidays is unlikely to be sufficient. Rather, an employer must positively request that an employee work on a specific public holiday.

If you have any questions in relation to this case, please do reach out to a member of our Employment & Workplace team.

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By Michaela Biggins

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