A right to relax Federal Court hands down decision on public holiday work

Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51A significant decision was handed down by the Full Federal Court on 28 March 2023 creating far reaching implications for employers that roster workers on public holidays. The decision clarified:

• that employees have an entitlement to be absent from work on public holidays; and
• what a 'request' to work on a public holiday must involve.

The case before the Court involved a group of approximately 85 employees of OS MCAP Pty Ltd (OS), who were required by OS to work on Christmas Day and Boxing Day. OS's rostering arrangements only allowed for a maximum of seven employees per roster panel to be absent on planned leave. In this case, one team of employees were asked to put their names into a draw and if they were chosen, they would be permitted to take Christmas and Boxing Day off, with the rest being required to work. Legal Principles The court considered section 114 of the Fair Work Act 2009, which provides as follows: Employee entitled to be absent on public holiday

• An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.

Reasonable requests to work on public holidays

• However, an employer may request an employee to work on a public holiday if the request is reasonable.
• If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

1. the request is not reasonable; or
2. the refusal is reasonable.

The Court decided that OS's requirement to work on Christmas Day and Boxing Day contravened Section 114 and that rostering employees to work on the public holidays did not constitute a 'request' and was therefore unlawful. The key takeaways from the decision are:

• The 'request' to work must be in the form of a question, leaving the employee with a choice to agree or refuse to work the public holiday shift.
• The 'request' to work needs to be reasonable.
• An employee can refuse a reasonable 'request' only if the refusal is reasonable.

What does this mean for Employers?

• Employers can no longer rely on rosters or provisions in employment contracts or enterprise agreements which state that public holiday work may be required to justify such work.
• Employers who operate and roster employees on public holidays should presume that employees will be absent on public holidays.
• Employers should make a request to employees to work on a public holiday before issuing a final roster. When making the request, employers should explain why it is reasonable for them to ask an employee to work on a public holiday.
• Any requests by employers should be made well in advance of the public holiday to allow time for negotiation or discussion about the reasonableness of the request or refusal.
• If an employer believes a reasonable request to work has been unreasonably refused by an employee, the employer will need to carefully consider and objectively justify its position in directing the employee to work the public holiday shift.
• OS is liable for civil penalties for breaching the Fair Work Act Employers who require public holiday work should seek advice on their arrangements.

Workplace laws are changing at a rapid pace. Pragma's employment lawyers are assisting employers to ensure their workplace practices, policies and contracts are compliant. Contact us today by clicking here or call us on (08) 6188 3340.