3 April, 2023
The Full Federal Court recently found that an employer who required its employees to work on a public holiday contravened the Fair Work Act 2009 (Cth) (“FW Act”).[1] This note provides a summary of the decision as well as the key take-aways for employers.
Section 114 of the FW Act provides employees with an entitlement to be absent from work on a public holiday without loss of pay. If the employee would have ordinarily worked that day, they do not miss out on pay because of their absence. This entitlement is qualified by section 114(2), which permits an employer to request an employee to work on that public holiday, provided the request is reasonable. In these circumstances, the employee can then only refuse the request if either the request was unreasonable, or the refusal is reasonable.
The case before the court involved employees whose contracts stated that they ‘may be required’ to work on a public holiday, and were provided a roster at the start of their employment showing their roster structure (eg seven days on, seven days off) and what public holidays they were working. When several employees requested leave over Christmas time, OS MCAP permitted some requests and drew names out of a hat for the others on the basis that it required at least enough workers so it could meet its commercial operational obligations to its client. In the first instance, the Federal Court held that ‘request’ was synonymous with ‘requirement’ in section 114 and that OS MCAP’s practice was lawful. This was overturned by the Full Court on appeal.
The Full Court held that the word ‘request’ in section 114 of the FW Act carries its ordinary meaning, being separate from a unilateral command, and prompting for discussion, negotiation, and refusal. OS MCAP’s actions in the matter before the court were not requests to work on Christmas Day but requirements.
The Full Court placed considerable emphasis on a request prompting a discussion or negotiation. A ‘request’ to work on a public holiday should involve the employer asking employees if they would be willing to work on the public holiday and giving those employees the opportunity to refuse (or negotiate) that request.
However, it is crucial that the request is reasonable in the first instance. That is, the employer cannot simply request an employee to work on a public holiday just to see if they are willing if that request itself is not reasonable. Factors relevant to determining reasonableness are set out in section 114(4) of the FW Act.
The Full Court’s decision does not mean that employees cannot be required to work on a public holiday—to the contrary, the court expressly stated that an employee can be required to work on a public holiday provided that the criteria in the FW Act have been met. The correct order of assessment (and steps to be taken) are therefore as follows.
The default position is that an employee is entitled to be absent from work on a public holiday.
The employer may request an employee to work on a public holiday if that request is reasonable.
If the employee agrees to work on the public holiday, or if the employee’s refusal is not reasonable, then the employee may be required to work on the public holiday.
Therefore, provided the employer has (reasonably) requested the employee to work on the public holiday and the employee agrees to that request (or the employee refuses but their refusal is unreasonable in the circumstances), the employer may require the employee to work on the public holiday.
Employers must first assess whether it will be reasonable for them to request an employee to work on a public holiday. This assessment must involve the factors set out in section 114(4) of the FW Act, which includes (without limitation) the nature of the employer’s work, whether the employee might have reasonably expected the request, and whether the employee is entitled to overtime payments or penalty rates.
If the request will be reasonable, the employer must then request the employee(s) to work on the public holiday. This request can be accomplished in various different ways—and the most appropriate way may vary from business to business—but crucially must be a clear request. The Full Court offered some helpful commentary including the following:
The employer must be able to justify that its request for an employee to work on a public holiday is reasonable in the first instance.
As described above, the request should be one that prompts not only the opportunity for refusal, but also for discussion and negotiation.
There may be circumstances in which an employee does not have particularly compelling circumstances as to why it would be reasonable for them to refuse the request.
This does not necessarily mean that the employer cannot publish a roster showing an employee working on a public holiday, but if the employer does this, it must ensure that employees understand either that the request was made (and accepted, or with no reasonable refusal) beforehand, or the employer makes it clear that the roster is a draft and that the employees on it are being requested to work on that public holiday.
A contract could include a provision foreshadowing that the employee(s) may be asked to work on a public holiday and that if any future request is reasonable and any refusal unreasonable, the employee(s) may then be required to work on the public holiday. Simply being in the contract is not enough to constitute a request.
This decision clarifies that current Easter weekend rosters, if having been published without employees first being requested to work on the public holiday, will potentially contravene the National Employment Standards.
We recommend employers, as soon as possible, communicate with employees rostered to work on public holidays over the Easter long weekend requesting whether they are willing to work on those public holidays (assuming it is reasonable to make that request), and that the employee may refuse the request if it is reasonable for them to refuse in the circumstances. If an employee has a reasonable basis to refuse, the employer may then need to request other employees to fill in those shifts.
If an employer is unable to review its roster and undertake the above recommended step before the long weekend, we recommend it ensures that it has some form of process in place ready to address any employees coming forward over the week and saying that they do not want to—or cannot—work on either of the Easter public holidays so that it can assess whether that refusal by the employee is reasonable in the circumstances. This in itself may not ensure full compliance with section 114 of the FW Act but will be a useful practical step to manage any queries over the course of the week.
It is important to note that the Full Court’s decision does not create any new law that only operates from the date of the decision. It is an interpretation of the law, and while it may yet be the subject of an appeal, it is the current authority on how to interpret section 114 of the FW Act. This means that past non-compliance could expose employers to potential liability under the FW Act.
This EMA Note is not comprehensive advice about your situation and does not cover all your obligations.
If you require advice in relation to past practice and whether you may be exposed to claims/actions, we recommend you seek a legal opinion from your preferred lawyer. If you do not have a preferred lawyer who specialises in industrial relations, please contact us and we would be happy to refer you on.
If you require further information or advice, including in relation to practical steps that can be taken to ensure compliance in the future, please contact your Consultant.
[1] Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51.
EMA Consulting is not a law firm and therefore does not provide legal advice or services. The information contained within this document and associated material is general in nature and should not be relied upon. If you require specific advice on a particular matter, we recommend that you contact EMA Consulting on 08 8203 1700. Subject to the matter at hand, your EMAC Consultant may recommend that you obtain formal legal advice. If formal legal advice is required, upon your written instruction EMAC will brief your matter to a legal practitioner for this purpose. The contents of this document and associated materials do not represent legal advice.
