It is common practice amongst employers to automatically roster staff to work on a public holiday without consulting with them beforehand. Generally, employers may rely on an employment contract or enterprise agreement which stipulates that an employee may be expected to work on public holidays.

A recent case in the Federal Court of Australia (the “FCA”) has set a new precedent for how employers direct employees to work on public holidays (read the case here). Ultimately, employers may request employees work on a public holiday, but employees have the right to refuse the work. Read below for further details on the case.

The case

OS MCAP (the “Employer”) employed production staff to operate machinery for its mining clients. The Employer had a contractual obligation with one of its clients to provide services at a specific mine for 24 hours a day, 365 days a year.

In August 2019, the Employer became aware that a number of employees were putting in leave applications for Christmas Day and Boxing Day (the “Christmas Holidays”). The Employer subsequently advised that they could only accommodate six employees for each “roster panel group” being absent from work on the Christmas Holidays and the six employees would be randomly chosen. There was an assumption that any employees rostered to work on the Christmas Holidays would work on those days, unless they applied for leave and it was granted.

The Construction, Forestry, Maritime, Mining and Energy Union (the “Union”) later brought proceedings against the Employer claiming that the employees who worked on the Christmas Holidays did not receive extra remuneration for working on a public holiday. The Union also claimed that the Employer breached the Fair Work Act 2009 (the “FW Act”) and National Employment Standards (“NES”) by imposing a requirement on the employees to work on a public holiday.

Decision

The FCA found that the Employer breached the FW Act and NES by requiring their employees to work on a public holiday because the FW Act provides that “an employee is entitled to be absent from employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes”. However, an employer may “request an employee to work on a public holiday if the request is reasonable”. The fact that the Employer’s employment contracts specified that employees “may be required to work on public holidays” was irrelevant.

The word “request” was defined as “to ask or beg”, which indicates that an employer is entitled to ask an employee about their availability to work on a public holiday, but the employee should ultimately be left with the choice to agree or refuse the request (where the refusal is reasonable).

The FCA also pointed out that the inherent power imbalance between employers and employees is an important consideration because employees will often “feel compelled, and not understand, that they have the capacity to refuse a request that is unreasonable or where their own refusal is reasonable”.

Key takeaways

The FCA confirmed the following principles for employers which essentially provides that employers must take a more consultative approach to work on public holiday:

• An employer must request an employee work on a public holiday before rostering them for work on a public holiday.
• After discussion or negotiation, an employer must genuinely consider the employee’s circumstances. The employer may require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable. What is considered as “unreasonable” will depend on the nature of the work, how reasonable the employer’s expectations are and the employee’s level of pay.
• An employer can still include public holidays in rosters, so long as the employer ensures the employee understands the roster is in draft or where a request to work is made before the rostered is finalised.
• The FW Act and NES override any contractual obligations and any provision of a modern award or enterprise agreement. However, employment contracts may still include a provision foreshadowing that employees may be asked to work on public holidays where the request is reasonable, and the refusal is unreasonable.

Kirryn West James, Director and Vanessa Yol, Associate