Earlier this year, the Full Court of the Federal Court of Australia reiterated in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (the Decision) that employers must first ‘request’ and cannot ‘require’ that an employee work on a public holiday. In practical terms, this meant that that employers cannot automatically roster employees to work on public holidays without prior consultation and making a reasonable request for that employee to work. The employer appealed the Decision to the High Court, which recently confirmed the Decision.

For many employers, the Decision was a departure of typical rostering practices. With the festive season fast approaching, it is especially important that employers understand their obligations and review their rostering practices (including in employment contracts and enterprise agreements) to ensure they are compliant.

Facts

The Decision involved employees in the mining industry, whose employer required them to work on Christmas Day and Boxing Day in 2019. Employees were informed that only six workers per crew could take leave, and for those who did not already have their leave approved, names were randomly selected to determine who would be rostered off. The employer did not ask its employees if they were willing to work on the public holidays. Rather, it was assumed that those rostered were willing to work those days (noting that the relevant employment contracts referred to the requirement to work public holidays), unless they applied for leave and it was granted.

Section 114 of the Fair Work Act 2009 (Cth)

Employees are entitled to be absent from employment on a public holiday. However, an employer may request that an employee work on a public holiday if the request is reasonable, and the employee is able to accept or reject that request. The employee can refuse if the employer’s request is unreasonable, or the employee has reasonable grounds for refusing to work the public holiday.

When considering the reasonableness of an employer’s request, or an employee’s refusal, section 114(4) of the Fair Work Act 2009 (Cth) (the FW Act) lists a range of factors that must be considered:

• The nature of the employer’s workplace and its operational requirements
• The nature of the employee’s work
• The employee’s personal circumstances (including family responsibilities)
• Whether the employee could reasonably expect that the employer might request that they work on the public holiday (such as whether it is referenced in an contractual or policy documents)
• Whether the employee is entitled to receive overtime payments.
• Penalty rates or other compensation for working the public holiday.
• The amount of notice provided by the employer of the request and the amount of notice given by the employee of the refusal.

The Decision importantly turned on the distinction between a ‘request’ and a ‘requirement’. The FCFCA determined that a request - which leaves the responder open to choose whether or not to do something - is inherently different to a requirement – which suggests the responder’s compliance.

What does this mean for employers?

Employers seeking to roster employees to work on a public holiday must ensure:

• It is framed as a request, not a direction.
• Employees are given a reasonable opportunity to respond to the request.
• The request is reasonable having regard to the factors in section 114(4).
• The request highlights that the employee has the option to refuse the request on reasonable grounds.

The Decision recommends that employers provide draft rosters, communicate why the request to work on a public holiday is reasonable, and ask employees to confirm their willingness to work In short, a collaborative approach is now emphasised.

Fundamentally, however, if a reasonable request is made, and the employee lacks reasonable grounds for refusal, the employee is required to work on the public holiday.

If you have questions about communicating with your employees ahead of the festive season about working on public holidays, or other employment-related concerns, we encourage you to reach out to our team of specialists.