By Amanda Curatore

Almost everyone enjoys a public holiday, but for some businesses, the doors stay open for all 365 days of the year. When a few holidays come at once like Easter and Christmas, questions about employees working public holidays arise and employers need to make sure they’re meeting their legal obligations surrounding request and refusal rights. Navigating this complex area of employment law can be tricky for any business owner – and it’s just become more intricate.

A recent ruling of the Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (the Decision) has reminded employers that they can only request that their employees work on a public holiday and that the employee can refuse such a request if the refusal is reasonable. The Decision has already raised a multitude of questions relating to how work on public holidays is to be arranged, so we have taken a deep dive into the principles outlined in the Decision that employers must be aware of and follow.

Background

In 2019, a BHP shelf company in Queensland required that their 85 mining employees work standard 12.5-hour shifts at the Daunia Mine, near Moranbah in Central Queensland, on Christmas Day and Boxing Day. Employees were engaged on contracts that included a provision that they may be required to work public holidays, and that payment for such work was included in their remuneration. In addition, each employee was provided with a roster card at the commencement of their employment which showed all the days, including public holidays, they would be required to work.

Ahead of the Christmas holiday period in 2019, the employer communicated to employees that only six employees could be absent per shift, with contingency for one other employee to take unplanned leave per shift. In response to multiple leave applications for the Christmas holiday period, the employer randomly selected employees who would be permitted to be absent on Christmas Day and Boxing Day. The employer never asked its employees whether they would be willing to work on Christmas or Boxing Day 2019. Rather, there was an assumption that those employees rostered to work on those days would work on those days unless they applied for leave and it was granted.

The legislative framework

Section 114 of the Fair Work Act 2009 (Cth) (FW Act) entitles an employee to be absent from work on a day or part day that is a public holiday. An exception to this is where the request from the employer to work is reasonable and the employee’s refusal is not reasonable.

Decision at first instance

The company that operates and provide services 24 hours a day, 365 days a year (a common operational practice across many industries) argued that a request to work on a public holiday included a requirement to do so. The employer argued:

1. that their employees were ‘aware’ or understood the requirement to work on public holidays, prior to commencing employment;
2. employees had a clause in their contracts stating that they, ‘may be required to work on public holidays …’; and
3. if employees were rostered to work but did not work on Christmas Day or Boxing Day, the total calendar hours in which the employer was able to operate machinery would be reduced by 48 hours, placing the employer at risk of not meeting its contractual obligations.

At first instance, the primary judge ruled in favour of the company on the basis that section 114 of the FW Act “is not intended to apply only to an employer’s “request” in the sense of a question leaving the employee with a choice as to whether or not to work on the public holiday. The provision is also intended to apply a “requirement” by an employer which indicates there is no choice for the employee but to work on a public holiday.” Essentially, the primary judge found that the employer’s requirement that their employees work on public holidays was equivalent to a request to work, and it was reasonable given the need to operate shifts on those public holidays.

Decision appealed

The decision was appealed by the Construction, Forestry, Maritime, and Energy Union (CFMEU) on the basis that the court erred in the meaning it attributed to the word “request.”

The Full Court of the Federal Court (the Court) determined that a “request” for the purposes of section 114 of the FW Act is the employee having a choice whether to work the public holiday and that a “request to require” was not a request within the ordinary meaning of that term. The Court found that the right of refusal required there to be scope for discussion and negotiation between the employer and employee about working on a public holiday. Ultimately the Court found that a breach of section 114 of the FW Act occurs not at the point of the request or failure to request but at the point of requiring an employee to work a public holiday without first having made the request.

The Court found that there was undisputed evidence which indicated that the employer never requested their employees, but rather, assumed that those employees rostered to work on those days would work on those days unless they applied for leave and it was granted. Therefore, the Court found that the employer had breached section 114 of the FW Act

A decision is yet to be made on any penalties or remedies to be applied.

What should employers take away from this?

When considering the relevant takeaway points arising from a decision, one must consider the relevant circumstances of the case. In the Decision, the employee’s employment contract stated that “you may be required to work on public holidays.” The employer then subsequently rostered employees on public holidays and assumed they would work unless they applied for leave.

Where the employer went wrong in this instance, is the fact that the employment contract stated that an employee “may be required to work” and then the employer rostered the employee on without allowing them the opportunity to discuss their acceptance to work on a public holiday. In circumstances where the employment contract states, “the employer may request that you work on a public holiday and you may refuse the request if you have reasonable grounds for doing so”, then the contractual stance is not that the employer is requiring that an employee work on a public holiday, but instead makes clear they may be requested to do so. The Decision made clear that “an employer can have a roster that includes public holidays. All that’s required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised. Similarly, a contract may contain a provision foreshadowing that the employees may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable.”

With this in mind, we don’t believe that an employer is obligated to ask every single employee whether they would be willing to work a public holiday or not before issuing a roster. Instead, if an employer has an appropriately drafted employment contract that makes it clear that the employee may be asked to work on a public holiday and that the employee can refuse to work if the refusal is reasonable then it’s more likely than not that the employer hasn’t breached section 114 of the FW Act.  If the employer goes a step further and gives the employee the opportunity to accept or reject a roster presented to them that includes a public holiday, then this certainly will not breach section 114 of the FW Act.

What is a reasonable request or an unreasonable refusal?

The FW Act states what constitutes a reasonable request. According to section 114 (4) of the FW Act, in determining whether a request or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:

1. The nature of the employer’s workplace or enterprise (including its operational requirements) and the nature of the work performed by the employee;
2. The employee’s personal circumstances, including family responsibilities;
3. Whether the employee could reasonably expect that the employer might request work on the public holiday;
4. Whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of work on the public holiday;
5. The type of employment of the employee (for example, whether full-time, part-time, casual, or shift work);
6. The amount of notice in advance of the public holiday given by the employer when making the request;
7. The refusal of a request – the amount of notice in advance of the public holiday given by the employee when refusing the request; and
8. Any other relevant matter.

How should an employer handle an unreasonable refusal?

If an employer has determined that an employee’s refusal is unreasonable based on the criteria outlined above, it’s recommended that the employer negotiate and try to come to an arrangement with the employee through further discussion. Once you have attempted negotiation and further discussion, it is only at this point, and in line with the Court’s view that ‘the employer may require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable.’ If an employee continues to refuse to work, then this would amount to a refusal to follow a lawful and reasonable direction which would have implications for their ongoing employment.

It’s not clear whether the Decision will be appealed, so it’s wise for employers to follow the guidelines explained in this article when organising work for public holidays.

Amanda Curatore is a qualified Solicitor at FCB (our sister company). Amanda is highly experienced in providing workplace relations advice and assistance to clients in a wide range of matters including employment contracts, modern award interpretation, managing performance, bullying and harassment, terminations, and managing risk.