Many Australian companies routinely need their employees to work on public holidays. For these businesses, the Full Court of the Federal Court of Australia recently ruled that employers need to request that employees work on public holidays rather than assuming they will or directing them to do so.
If you haven’t already, you should assess any current and upcoming rosters, contracts, and enterprise agreements that deal with your employees working on public holidays.
What happened?
The case of Construction, Forestry, Maritime, Mining and Energy Union v. OS MCAP Pty Ltd [2023] FCAFC 51 involved 85 employees of OS MCAP Pty Ltd, which offered mining services in central Queensland.
The employees were obliged to work on Christmas Day and Boxing Day in 2019. No additional compensation was given to the appropriate workers for working on those days.
They were permitted to request leave for public holidays. However, under the terms of OS MCAP’s contract, until leave was granted, they were still compelled to report to work if rostered on those days. Names were picked at random from a hat to determine who could take vacation when more individuals requested time off than could be accommodated while still maintaining staffing levels.
OS MCAP didn’t ask its staff if they would be available to work on the public holidays; instead, it was assumed that those who were rostered to work on those days would show up to work unless leave was otherwise granted. Additionally, OS MCAP never informed workers that they had the option to decline (if the refusal was justified) to work on Christmas Day, Boxing Day, or any other public holiday under the FWA or in any other circumstance.
The Construction, Forestry, Maritime, Mining and Energy Union claimed that the employer had fallen foul of both the National Employment Standards (NES) and the Fair Work Act (FWA) by requiring these employees to work on public holidays.
The decision: Employees are entitled to be absent on public holidays
The Full Court of the Federal Court determined that no contract or enterprise agreement could supersede the right provided for under Section 114 of the FWA for employees to be off work on a public holiday.
The Court also pointed out that there is a “fundamental difference” between a “request” and a “requirement” and that it was against to the object of the FWA to require workers to work on a public holiday without giving them a meaningful option to decline such employment.
Section 114 is meant to address the natural power disparity that exists between employers and employees since it’s common for workers to feel obliged to comply. Employees also fail to recognise when a request is inappropriate or when they can reasonably reject a request. The need for a “request” – as opposed to a blanket order – allows for the possibility of dialogue, compromise, and rejection.
Takeaways
- A clause in an employment contract requiring your employees to work on public holidays is insufficient. Contracts cannot supersede NES rights granted to employees.
- Given that the Full Court decision indicates that such requirements may be in violation of the NES and subject to civil penalties, you must urgently consider any current or future requirements for employees to work on public holidays (including those in rosters, contracts, and enterprise agreements).
- Whenever it becomes necessary for staff to work on a holiday, make sure to ask them whether they want to do so rather than just giving them orders. When making a request under section 114, it is important to explain why it is appropriate in light of the needs of the company. The nature of the enterprise and its operational requirements, the employee’s personal and family circumstances, whether additional payment in the form of overtime or penalty rates will apply, whether the employee is full-time, part-time, or casual, and how much notice is given of the need to work on the public holiday are among the criteria listed in section 114(4) that determine whether a request is reasonable.
- Give workers enough time to think about your request and, if they want, to provide their own justifications for refusing them. You can require an employee to work without violating section 44 if the employee’s justifications for declining a reasonable request do not align with the circumstances listed in sub-section 114(4).