Public Holidays - Can You Require an Employee to Work?
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Partner
Australia
I am a partner in our International HR Services Group in Sydney where I advise our clients on the full spectrum of employment and industrial law issues.
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Many Australian businesses need their workers to work on public holidays as part of their usual operations. Unfortunately for those businesses, the Full Court of the Federal Court of Australia has recently decided that employers cannot assume that employees will, or direct employees to work, on public holidays; rather, it can only request this.
With the King’s Birthday public holiday upcoming in June, employers should take careful note of this decision and consider whether any requests for employees to work on that day are, in fact, reasonable.
Background
The case involved mining company BHP, which engaged an in-house labour provider, OS MCAP, to supply employees for work on its mine sites. In 2019, approximately 85 employees were rostered to work 12.5 hour shifts at the Daunia Mine on each of Christmas Day and Boxing Day. A number of employees requested leave on those days but they were told that due to operational requirements, the business could only accommodate 6 employees for each roster being absent from work on Christmas Day and Boxing Day, in order to meet contractual obligations. The roster therefore remained and employees were required to work.
The claim
The Construction, Forestry, Mining and Energy Union (CFMEU) commenced proceedings, alleging that OS MCAP had breached its obligations under section 114 of the Fair Work Act 2009 (Cth) (FW Act) and the National Employment Standards (NES) by requiring employees to work on a public holiday.
The NES provides that employees are entitled to be absent from work on a public holiday, but that employers may request an employee to work on a public holiday if the request is reasonable. The CFMEU contended that rostering employees to work on public holidays did not constitute a request, as it did not leave employees with a choice, whether or not to work.
The decision
The Full Court of the Federal Court found that section 114 of the FW Act sets out a prima facie entitlement for employees to be absent from their employment on a public holiday, and that this entitlement could not be displaced by any contractual or enterprise agreement. The Court also recognised that there is a “fundamental difference” between a “request” and a “requirement”, and that requiring employees to work on a public holiday without providing them with a genuine opportunity to reject that work was not consistent with the intention of the FW Act.
Ramifications for employers
As a result of the decision, employers who operate a roster which schedules employees to work on public holidays will need to more carefully schedule these arrangements moving forward. The decision makes clear that there is an onus on employers to now request that employees work on a public holiday.
Although this can still be done by way of rosters, when making the initial request for employees to work on a public holiday, employers should:
- make the request as far in advance as is possible, to allow employees to consider the request;
- explain why the request is reasonable, given business needs; and
- allow employees the opportunity to agree to work a shift or otherwise provide reasons for their reasonable refusal.
Of course, where a public holiday roster is reasonable and where any refusal to work is not for reasons including, for example, the employee’s health or family responsibilities (and is therefore unreasonable), the roster can remain.
Authors: Kristy Peacock-Smith, Thomas Du, Alexander Dimovski
