EMPOWERING EMPLOYERS: PLANNING FOR PUBLIC HOLIDAYS

Lessons learned from Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51

 

With Easter approaching, employers are reminded of their obligations for rostering on public holidays.

A recent Full Federal Court decision clarified that employers cannot issue a formal direction for employees to work on public holidays until they have first made a request and considered the employee’s response.  The requirement applies despite any term in a modern award, enterprise agreement or employment contract.

 

Quick summary – how does this affect my business in practice?

Previously it was common practice for employers to inform employees that it was a condition of their employment that they work public holidays as rostered, with no clear option for employees to refuse to work.  However, this practice is now considered to be inconsistent with the National Employment Standards (NES).

 

5 steps to manage rostering arrangements over the Easter public holidays  

  • Step 1 – Issue a policy, guide or procedure. Notify employees of your practice for rostering arrangements on public holidays.  The process is set out (broadly) in the steps below.
  • Step 2 – Issue an ‘indicative roster’. Distribute a draft roster for periods that include public holidays.  Alternatively, issue a request to individual employees to request them to work public holidays.
  • Step 3 – Provide an explanation. Clarify why you believe the requirement for employees to work on the public holiday is justified. This can be included in writing alongside the draft roster.
  • Step 4 – Give employees an opportunity to respond.  Allow each employee to either agree to work the shift or explain why they will not work it.
  • Step 5 – Make a final decision.  Consider all relevant circumstances, including any justifications provided by individual employees for declining the request to work on a public holiday.  Decide whether it is reasonable to require the employee to work the public holiday.  Communicate the outcome. 

Background

  • The employer, OS MCAP Pty Ltd (OS), employed production employees to operate mobile machinery for its mining clients. This included BM Alliance Coal Operations Pty Ltd (BMA).
  • An agreement between OS and BMA required it to provide a specific number of workers each month. 
  • The contract of employment between OS and its employees stated that they would be required to work on public holidays. 
  • OS rostered its employees to work over the Christmas period, but no request was made to employees that they work over the period.
  • The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) commenced proceedings claiming that OS’ failure to make such a request breached the NES which relevantly provides that ‘an employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday’, however ‘an employer may request an employee to work on a public holiday if the request is reasonable’. 

First instance

  • The primary judge held that the relevant NES was to be construed so that a ‘requirement’ to work on public holidays was taken to be a ‘request’.
  • The CFMEU appealed the decision.

On appeal to the Full Federal Court

  • The Full Federal Court allowed the appeal.
  • The Court found that:
    • the NES was to be construed with regard to its purpose of providing minimum protections for employees
    • the need for an employer to ‘request’ that employees work on public holidays cannot be satisfied by a requirement that they work on the public holiday.
  • Given the above, OS failed to make a request and therefore breached its NES obligations under s 114 of the Fair Work Act 2009 (Cth) (Fair Work Act).
  • OS sought special leave to appeal to the High Court.

On request for special leave to appeal to the High Court

  • The High Court refused to grant OS’ bid to challenge the Full Federal Court’s decision. The matter will be remitted back to the primary judge for determination of remedy and penalties.

 

Frequently asked questions

Q: What should the policy, guide or procedure regarding public holiday work include?

Employees should be notified of the employer’s practice for rostering on public holidays.  The notice can take the form of a policy, guide or procedure which should include:

  • the needs of the workplace. That is, the legitimate reasons the business needs to operate on public holidays
  • that the employer will issue an ‘indicative roster’ for work on public holidays
  • how and when employees should communicate their ‘refusal’ to work on public holidays, and what kind of evidence they should provide to substantiate their reasons
  • the factors set out in s 114(4) of the Fair Work Act that the employer will apply in determining whether any refusal to work is reasonable
  • how the employee will be remunerated for the public holiday, and any impact on annual leave accruals.

Q: How much notice is required of the request to work a public holiday?

The request should be made as soon as possible, given that this is a factor the Fair Work Commission must take into account in determining whether the request was reasonable.

Six weeks was considered reasonable notice in the case of Australian Federated Union of Locomotive Employees v Aurizon Operations Ltd (Aurizon).

 

 

Q: What if an employee refuses to work a public holiday?

  • Potential disciplinary issue. If an employee unreasonably refuses an employer’s reasonable request to work on a public holiday, this may amount to a refusal to comply with a lawful and reasonable direction. However, you should exercise caution before taking disciplinary action on that basis.
  • Potential for dispute. An employee may raise a dispute in response to an employer’s direction to work on a public holiday.  The dispute may be raised internally according to the employer’s grievance policy or through an external body including the Fair Work Commission if a modern award or enterprise agreement applies to the employee.
  • Potential to impact status as a shiftworker entitled to an additional weeks’ annual leave. An employee’s decision not to work public holidays may impact their status as a shiftworker.  To be considered a shiftworker and receive an additional week of annual leave under the NES, employees must work a certain number of public holidays.  The specific number is set out in the relevant modern award, enterprise agreement, or the Fair Work Act.

Q: How do I know if a request is reasonable, or a refusal is unreasonable?

Section 114 of the Fair Work Act sets out various matters to be considered when determining whether a request or refusal is reasonable.  They include:

  • the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee
  • the employee’s personal circumstances, including family responsibilities
  • whether the employee could reasonably expect that the employer might request work on the public holiday. A positive obligation in an award, enterprise or contract will not be decisive
  • whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday
  • the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork)
  • the amount of notice in advance of the public holiday given by the employer when making the request
  • in relation to the refusal of a request – the amount of notice in advance of the public holiday given by the employee when refusing the request
  • any other relevant matter.

In Aurizon an employer’s refusal of two employee’s requests not to work on public holidays for general family and religious reasons was found to be reasonable, when balanced against the needs of the business to continue its operations in the resources sector.

 

 

Q: Should I update my employment contracts?

It is not essential to update employment contracts.  However, employment contracts may be amended to state:

  • that the employee agrees they may (or will) be requested to work on public holidays due to operational requirements
  • if the employee works under a roster, and the roster includes work on a public holiday, this constitutes a ‘request’ to work on those days (which may be reasonably refused)
  • how the employee will be remunerated for public holiday work.

Q: Are there any penalties if I breach the NES?

Maximum penalties for breaching the NES are currently $18,780 per contravention for an individual and $93,900 per contravention for a company.

 

 

Q: How do I know which days are public holidays?

The following are public holidays:

  • 1 January (New Year’s Day)
  • 26 January (Australia Day)
  • Good Friday
  • Easter Monday
  • 25 April (Anzac Day)
  • the King’s birthday holiday (on the day on which it is celebrated in your jurisdiction)
  • 25 December (Christmas Day)
  • 26 December (Boxing Day)
  • any other day, or part-day that is prescribed as a relevant public holiday in your jurisdiction.

The information contained in this update is intended as a guide only.  You should seek professional advice before applying any of the information to particular circumstances.  Whilst reasonable care has been taken in the preparation of this update, EmploySafe Legal does not accept liability for any errors it may contain.

 

Kate Simpson
Managing Director – Employment & Safety Lawyer
+61 420 972 497
kate.simpson@employsafelegal.com.au

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