Key takeaways

• Beware the automatic public holiday roster. Instead, employers will need to:
  • Issue public holiday rosters in draft well in advance of the public holiday (sorry - but it may be too late for Easter…).
  • Ensure that you have good reasons for requiring employees on the roster to work (eg operational requirements).
  • Make it clear to employees who have been assigned to work on public holidays that they can accept or reject the roster.
  • Consider whether any refusals which you received are reasonable or unreasonable.
  • If the refusals are reasonable, then you may need to substitute employees and again go through the request process in relation to the substitutes. Employers may need to consider competing refusals.
• It will be important that employers issue these requests well ahead of the public holiday.
• Employers will need to review their contracts to align with the law. As indicated earlier, contracts can contain a provision foreshadowing that employees may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable. However, an employee cannot be required to agree in advance that they will work on a public holiday.
• Employers will need a reasonable basis for requiring staff to work on a public holiday - this decision may increase the number of refusals which employers receive in working a public holiday. Section 114 of the Fair Work Act 2009 (Cth) proscribes eight matters to consider when determining the reasonableness of employer requests. We highlight, in particular:
  • The nature of their workplace and operational requirements: consider whether the overall operations are critical, as well as whether the services of a particular employee/position are critical. For example, there would be a strong basis to require employees who provided essential services to work on a public holidays, in the absence of any reasonable alternative.
  • Whether there are penalty rates, overtime or a high level of remuneration that reflect an expectation of public holiday work
  • Whether there is a policy or contract providing that public holiday work may be requested
  • Whether the employer provided sufficient notice to the employee

Employers who require employees to work on a public holiday, and who do not make a request as required by law, may suffer a penalty. Penalties for breach of the NES are currently AUD 16,500 for an individual, and AUD 82,500 for a body corporate. Serious contraventions are AUD 165,000 for an individual and AUD 825,000 for a body corporate.

Background

See: Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51

• The relevant provisions are set out in section 114 of the Fair Work Act 2009 (Cth) ("Act"):
  • S 114(1) affords employees the protection to not be required to work on a public holiday. Section 116 provides that absent employees must be paid.
  • S 114(2) permits an employer to request an employee to work on a public holiday, where the request is reasonable (e.g., due to the nature of the workplace and operational requirements; or where the employee will receive penalty rates).
  • S 114(3) provides that an employee can refuse an unreasonable request, or refuse a reasonable request where the employee's refusal is reasonable (e.g., due to family responsibilities; lack of notice).
• BMA Alliance Coal Operations Pty Ltd contracted with OS MCAP Pty Ltd ("OS") to provide workers at the Daunia mine. The mine required production services 24/7, so workers would have to be available on public holidays including Christmas Day and Boxing Day.
• OS initially provided employees with a roster covering Christmas and Boxing Day and stated that it could only accommodate a limited number of employees being absent from work on these days.
• In short, it was held that OS 'never made a request of its employees asking them whether they would be willing to work on Christmas or Boxing Day 2019. Rather, there was an assumption that those employees rostered to work on those days would work on those days, unless they applied for leave and it was granted'.

Request v require

• The core issue in the case was what constitutes a ‘request’ per s 114 of the Act.
• OS contended that a reasonable requirement to work on a public holiday could be equated with a request, so that an employer would only contravene s 114 if they issued an unreasonable requirement.
• The Union contended that a contravention will occur where an employer requires an employee to work on a public holiday and has made no reasonable request.
• The Full Court, overturning an earlier decision of the Federal Court, accepted the Union's construction, pointing to factors such as:
  • The context of the NES (ensuring minimum standards that cannot be displaced) coupled with the purpose of the provision, to be absent on a public holiday
  • The ordinary meaning of 'request', entailing an 'ask' from the employer and an ability to refuse from the employee