Employees must be asked whether they want to work on public holidays

A recent decision handed down by the Full Court of the Federal Court has clarified the process that businesses must follow in relation to working arrangements on public holidays.

In the case of Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, the employer was a labour hire company which supplied workers to businesses in the mining industry who conducted 7-day operations. Its employment contracts contained a clause to the effect that employees might be required to work on public holidays. Employees were then rostered to work on one or more public holidays through the course of the year.

The CFMMEU commenced proceedings on behalf of 85 employees of the labour hire company arguing that the employer’s practices were in breach of the Fair Work Act.

What does the law say?

Public holidays are dealt with in the National Employment Standards contained in the Fair Work Act. Modern awards and enterprise agreements also often contain terms which relate to working arrangements on public holidays.

Relevantly, section 114 of the Fair Work Act states that:

• an employee is entitled to not work on a public holiday;
• an employer may request an employee to work on a public holiday, provided that the request is reasonable in all the circumstances;
• if such a request is made, the employee may only refuse the request if:
  • the request is not reasonable; or
  • the employee’s refusal is reasonable.

The need for a ‘request’

The key issue in the case was the practical meaning of ‘request’ in section 114. The employer asserted that it had complied with the requirement that it request employees to work on public holidays by virtue of the clause in employees’ contracts of employment referred to above. The CFMMEU argued that a specific ‘request’ needed to have been made, but wasn’t.

The Full Federal Court’s view was that:

• the word ‘request’ in section 114 requires that employees have an actual choice whether or not to work on a public holiday;
• the clause in the employees’ employment contracts therefore did not constitute a ‘request’.

The employer was consequently found to have breached the Fair Work Act.

Takeaways

The court’s approach to the meaning of section 114 means that employers must presume that employees will be absent from work on public holidays unless and until such time as employees are specifically asked to work, and agree to work.

Including a generic clause in employees’ contracts informing them that they may be required to work on public holidays from time to time is not enough to comply with section 114. Nor is it enough to simply roster employees to work on a public holiday and rely on the employee’s attendance for their rostered shift as evidence of their consent to work.

The recent decision of the Federal Court does not prevent businesses from requiring employees to work on public holidays. Provided that the employer makes a request, the request is reasonable, and the employee has no reasonable basis for refusing the request, the employee can be required to work on a public holiday.

The reasonableness of an employer’s request and an employee’s refusal must be assessed on a case-by-case basis having regard to a number of factors prescribed in the Fair Work Act, including:

• the nature of the employer’s business, its operational requirements, and the industry in which it operates;
• the nature of the work performed by the employee;
• the employee’s personal circumstances, including their family responsibilities;
• whether the employee is entitled to receive overtime payments or penalty rates for working on public holidays; and
• the amount of notice provided to employees in advance of the public holiday.
  

Businesses should review their current practices to ensure they are consistent with the approach endorsed by the Federal Court.

In general terms, we recommend the following practice:

• As a first step, businesses need to consider whether it is reasonable to request that an employee work on a particular public holiday, having regard to the relevant factors set out in the Fair Work Act (some of which are referred to above)
• Once satisfied that making a request would be reasonable, businesses should contact affected employees (in writing) for the purpose of:
  • requesting that they work on a particular public holiday;
  • outlining why the employee is being asked to work;
  • explaining that the employee is entitled to refuse to work if it is reasonable for them to do so;
  • asking the employee to respond indicating whether or not they agree to work on the proposed date;
  • explaining that if they elect not to work then they must explain their reason(s) so that the business can assess the reasonableness of their election, because they may be required to work on the public holiday if their refusal to work is unreasonable in all the circumstances
• Employees should be contacted sufficiently in advance of each public holiday to ensure they have a reasonable period of time to consider and respond to the request to work.
  

This article provides general commentary only. It is not legal advice. Before acting on the basis of any material contained in this article, seek professional advice.


Co-author: Lachlan Chuong

Practice: Disputes

Position: Associate