Insights & News

April 24, 2023

‘Psychosocial’ hazards have become a buzz word in recent years – largely due to an increase in psychological harm people are suffering in relation to work – and equally due to our increasing awareness about the issues. Psychosocial hazards create a stressful work environment which may cause psychological or physical injuries in the workplace, including worker burnout or depression.

Psychosocial hazards arise in all facets of the workplace and can stem from workers’ social and physical work environments, and include bullying, sexual harassment, poor support, low role clarity, low recognition and poor workplace relationships. Psychosocial hazards can also come from poor job design, a lack of organisational justice and management and the social context of work.

On 1 April 2023, new Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022 (Qld) and the Queensland Code of Practice on Managing Psychosocial Hazards at Work 2022 (Code) commenced to assist persons conducting a business or undertaking (PCBUs) in discharging their obligations to workers regarding psychosocial hazards in the workplace.

The driver for these changes was the Boland Review of the Model WHS Laws in 2018 which concluded that the Model WHS Laws did not do enough to address psychosocial hazards in the workplace. Following this, Safe Work Australia created the ‘Model Code of Practice: Managing psychosocial hazards at work’, the basis for Queensland’s Code. Other harmonised states have already adopted versions of the Code.

What’s changed?

At first glance, not much. PCBUs are already required to address psychosocial hazards. The Work Health and Safety Act 2011 (Qld) (Act) requires PCBUs to ensure the health and safety of their workers which includes both physical and psychological health.

As Workplace Health and Safety Queensland have pointed out, the duty to ensure psychological health of workers is not new. Society just has a better understanding now of the hazards that give rise to psychological harm.

The Code commenced in Queensland on 1 April 2023. A new provision was also added to the Work Health and Safety Regulations 2011 (Qld) requiring PCBUs to manage risks in accordance with the legislative hierarchy of controls (discussed below).

The Code addresses how PCBUs can address psychosocial hazards in the workplace. The Code clarifies existing obligations around psychosocial hazards and aims to help PCBUs implement more effective risk management practices.

In Queensland, the Code has statutory force.

Section 26A of the Act requires PCBUs to comply with codes of practice, or manage hazards and risks in a way that provides a standard of health and safety that is equivalent to or higher than the standard required under a code of practice. A failure to comply with the Code may lead to fines or imprisonment.

By contrast, codes of practice in other harmonised Australian jurisdictions do not create additional duties and no penalties are imposed. They are admissible as evidence of whether a PCBU has complied with their duty. Codes of practice are frequently produced in other jurisdictions as evidence by prosecutors to establish what a PCBU knew or ought reasonably to have known about a hazard or risk, and ways to eliminate or minimise that hazard or risk.

What’s in the Code?

The Code outlines a four-step psychosocial risks management process:

1. identify psychosocial hazards
2. assess psychosocial risks
3. control the risk of psychosocial hazards; and
4. maintain and review control measures.

The Code provides prescriptive guidance about the matters PCBUs must have regard to when completing each step.

This risk management process is not a one-time activity that PCBUs can set and forget. PCBUs must be constantly aware of and engaged in this four-step process to address new psychosocial hazards in the workplace.

An emphasis is placed on the need for and benefit of involving workers in the psychosocial risk management process. PCBUs are encouraged to consult with their workers about how they plan to and how they are going about the psychosocial risk management process.

Workers are encouraged to report psychosocial hazards to PCBUs under the code and a process for responding to these reports is set out to guide users. The hazards workers report will naturally guide PCBUs in their engagement with the risk management process.

What controls should PCBUs implement?

Implementation of effective control measures requires cooperation and communication of PCBUs and their workers. What is effective in one workplace might not be in another. Effective controls should be tailored to the particular hazards and risks identified in the risk management process.

The Code refers to the hierarchy of controls throughout. The hierarchy is a framework created by the Act which sets out the most to least effective forms of risk management available to duty holders.

First, where risks cannot be eliminated entirely duty holders should minimise the risk by substituting or isolating a hazard which gives rise to a risk and by implementing engineering controls (i.e. physical barriers).

Second, duty holders can implement administrative controls like policies and standard operating procedures that minimise exposure and provide information, training and instruction about hazards and risks.

Finally, duty holders can equip workers with personal protective equipment. This may be difficult to envisage for psychosocial hazards. The Code gives examples like hearing protection to reduce stress, and face shields to protect health care workers from distressing environments and patients.

Examples of possibly effective controls are provided throughout the Code.

What do PCBUs need to do?

A Workplace Health and Safety Queensland representative recently gave some simple advice during a public webinar: ‘you should read the code and you should comply with the code’. It is simplistic advice for what is a complex issue – particularly given the intangible nature of many of the hazards the Code is aimed at addressing – but it’s not necessarily untrue.

PCBUs need to know what is in the Code. They should be reviewing their existing controls and consulting with workers to determine if they are currently complying, or if more needs to be done.

As a starting point, review the examples provided throughout the Code. Think about whether any of them resonate with your workplace.

Go through the risk management process. Be guided by the Code to determine if there is more you can do to not only comply, but effectively control psychosocial hazards in the workplace.

Assess your current policies and procedures. Consider whether they deal with, or even contemplate, psychosocial hazards. If they don’t, update them.

Finally, keep a record of the risk assessments you do undertake, and the changes you make. Workplace Health and Safety Queensland have expressed a clear intention to engage in enforcement activity throughout the community. Proper records will be helpful evidence to have when the inspectors come knocking.

April 19, 2023

On remittal from the High Court, ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2, the Full Federal Court considered the last outstanding issue in this long-running saga.

Were the truck drivers entitled to compulsory superannuation under the extended definition of “employee” in section 12(3) of the Superannuation Guarantee Administration Act 1992 (Cth) (SGA Act)?

In Jamsek v ZG Operations Australia Pty Ltd (No 3) [2023] FCAFC 48, channelling the ‘contract is king’ approach (adopted by the High Court in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 and ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2), the Full Court decided they were not.

What is the section 12(3) extended employee definition?

Section 12(3) of the SGA Act provides that a person who works under a contract that is wholly or principally for their labour will be an employee of the other party to the contract. Independent contractors who fall under this definition are deemed by the SGA Act to be employees (for superannuation purposes), and as such, are entitled to compulsory superannuation.

For the truck drivers in this case, the central question was whether the provision of trucking services through a partnership structure fell within this extended employee definition.

The Full Court said three elements needed to be satisfied for s 12(3) and two were not.

First, there was no contract with a natural person in their individual capacity.

Second, the contracts were not wholly or principally for the labour of a person.

There was no contract with a person

The Full Court said that a contract under s 12(3) must be with an identified natural person who is party to the contract in their individual capacity.

However, the truck drivers (and their wives) were parties in another capacity, as partners in a partnership. This meant the contract was not covered by section 12(3).

The deeming of a partnership as a legal person under section 72(1) of the SGA Act, so that obligations, liability and penalties can be imposed on a partnership as an employer, did not change this position. Section 72(1) did not make a partnership capable of being an employee under section 12(3).

Additionally, the Court observed that the requirement of a “natural person contracting in their individual capacity” does not automatically mean that a tripartite contractual arrangement will always fall outside the extended employee definition. Rather, the key focus is on whether there is a bilateral exchange of promises between a natural person (who provides their labour) and another party to the contract (who provides payment for this labour).

It is not simply a matter of counting the number of parties to a contract and looking at who the named parties to a contract are (as this would permit parties to circumvent the superannuation guarantee regime by simply forming contracts with more than two parties). In this regard, the Full Court referred to its earlier judgment in Dental Corporation Pty Ltd v Moffet [2020] FCAFC 118 as an example of a case where an individual was found to be an employee under section 12(3) despite being party to a tripartite services agreement.

The contract was not wholly or principally for the labour of a person

The Full Court agreed that the contracts were not wholly or principally for the labour of a person.

This was to be assessed from the “employer’s” perspective, and the starting point for the enquiry was the terms of the contract.

The contractual terms key to the Court’s conclusion were:

• While the contracts required the provision of labour, they also required the drivers to provide functional and properly maintained equipment, namely their trucks. This was described as “a substantial capital asset” for which the drivers’ partnerships were wholly responsible (this included making arrangements to insure the trucks).
• The partnerships could delegate the drivers’ work to a substitute driver (although this was only with the consent of ZG Operations).

These contractual terms demonstrated that the truck drivers had undertaken to provide a goods delivery service and not a labour service. Labour was a component of the service but was not the “principal benefit” received by ZG Operations (although the Full Court did observe that the truck drivers had failed to adduce evidence of the market value of their labour vis-a-vis the market value of their equipment).

Tips for principals

This is an important case providing principals with guidance on the operation of section 12(3) of the SGA Act.

The case demonstrates that if principals wish to avoid compulsory superannuation, a partnership structure may assist. However, the terms of the relevant engagement contract must be closely scrutinised and must not disclose a bilateral exchange of promises for the provision of, and payment for, an individual’s labour. Of course, care must be taken with this approach as a partnership is not a legal entity distinct from its members.

Even where interposed legal entities such as corporations are utilised, principals need to be careful to ensure that the terms of any services agreement do not entail a bilateral exchange with an individual for their labour. Where possible, and particularly where a principal wishes to avoid liability for compulsory superannuation, it would be wise for a principal to refrain from entering into tripartite arrangements of this kind (which are different to a traditional labour hire arrangement) altogether. Rather, the safest approach may be for a principal to contract directly with a corporate entity, with the parties’ written agreement not making any references to services or labour provided by an individual.

Getting this right is important, particularly as the issue of superannuation underpayments has received significant attention in recent years. The introduction of the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Cth) into Federal Parliament on 29 March 2023 demonstrates this shift, as this bill seeks to make superannuation entitlements an enforceable right under the National Employment Standards. That said, as currently drafted, this new right under the bill only applies to individuals who fall within the ordinary meaning of “employee” under the Fair Work Act 2009 (Cth) and does not apply to individuals who are employees by virtue of the extended meaning of employee under the SGA Act.

Kingston Reid can assist with any issues relating to the engagement of workers within your organisation, including advising on the most appropriate labour engagement model for your business and assisting with any entitlement-related questions or issues that may arise.

April 18, 2023

Why is this happening?

In 2021, the Queensland Government asked the Queensland Human Rights Commission (QHRC) to review the Anti-Discrimination Act 1991 (Qld) (AD Act) to see if the AD Act needed updating to support equality, non-discrimination and human rights.

On 1 September 2022, the QHRC made 122 recommendations for change and the Government provided an interim response indicating its support.

The Government issued its final response on 28 March 2023 and confirmed its in-principle support for all recommendations.

How extensive are the proposed reforms?

This reform is substantial and the AD Act will be repealed and replaced.

The Government plans to introduce a Bill before its term ends in October 2024 and will consult extensively with stakeholders and the community.

Which changes are the most important?

There are six key changes to keep in mind:

1. Specific objects and beneficial interpretation requirements, where ambiguities in the new Act will be interpreted to benefit the person with a protected attribute.
2. A revised definition of discrimination, a reverse onus of proof and a longer 2 year time limit to make a complaint.
3. Positive duties to eliminate discrimination and sexual harassment and accommodate persons with a protected attribute.
4. A modernised list of protected attributes.
5. Changes to the QHRC’s discrimination complaint and dispute resolution.
6. An enhanced proactive role for the QHRC to ensure organisational compliance.

Many employers will need to make significant workplace changes to prevent unlawful discrimination and harassment if these changes become law.

How will discrimination be defined?

Discrimination will be defined as direct or indirect (or both).

A person directly discriminates against another person if they treat, or propose to treat, that other person unfavourably because of one or more protected attributes, or because of the effect of a combination of protected attributes. For example, a person may directly discriminate if they do not employ a person because of the person’s carer responsibilities.

A person indirectly discriminates if they impose an unreasonable condition, requirement or practice in the workplace which has or is likely to have the effect of disadvantaging a person with a protected attribute or a combination of protected attributes. For example, requiring people to attend out-of-hours meetings may have the effect of disadvantaging persons with carer responsibilities, even if they are paid for their time.

Unlawful discrimination may involve one or more protected attributes and the protected attribute(s) need not be the only reason for the unfavourable treatment. Previously the protected attribute had to be the substantial reason for the treatment.

The burden of proof is now shared. This means a complainant must first show a prima facie case. After that, the employer must then prove the unlawful discrimination did not occur. This is similar to the approach in general protections claims under the Fair Work Act 2009 (Cth).

What is the extent of the positive duty?

There will be a positive duty to make reasonable accommodation for a person with a disability (and their carers) with a non-exhaustive list of criteria for guidance.

Unsurprisingly and consistent with other jurisdictions, there will be a positive duty to take reasonable and proportionate measures to eliminate discrimination and sexual harassment for Respect@Work.

What are the new additional protected attributes?

These are the new protected attributes:

• Addiction as a form of disability
• Sex workers
• Assistance animals (not limited to dogs)
• Immigration or migration status as part of a person’s race, except where discrimination occurs in direct compliance with a state or Commonwealth law
• Sex characteristics (including in respect of people who identify with a certain sex)
• Irrelevant criminal record, including expunged homosexual convictions, spent convictions and the imputation of a record relating to arrest, interrogation or criminal proceedings of any sort. This would not remove an employer’s ability to discriminate based on a criminal record that is relevant to the particular position
• Physical features, including a person’s weight, size, height, birth marks, scars and bodily characteristics. Protected physical features would not include a person’s chosen alterations to their physical appearance, such as tattoos, piercings or hair styles
• Domestic or family violence
• Homelessness.

Which protected attributes are going to change?

These existing protected attributes will be modernised:

• Impairment → Disability
• Sexuality → Sexual orientation
• Family responsibilities → Family, carer or kinship responsibilities
• “Gender identity”, “Sex” and “Gender” will be redefined to be more inclusive.

Are there any changes to specific areas of work?

These changes target specific areas of work:

• religious bodies such as schools will be prohibited from discriminating against employees based on religion where the employee is not directly involved in teaching, observing or practicing a certain religion, and
• employers working with children will no longer be able to discriminate against a person based on their lawful sexual activity or gender identity.

How will the complaint and dispute resolution processes change

The complaints process is more accessible for employees.

The QHRC may reasonably assist a complainant who needs help to put their complaint in writing. For example, transcribing an oral complaint.

The QHRC has more flexibility in handling complaints. It may make preliminary inquiries into complaints and offer suitable alternative dispute resolution services instead of conciliation. The QHRC has more discretion to decline dispute resolution services for frivolous, trivial, vexatious, baseless or out of time complaints.

This time limit for a claim extends from one to two years, with a discretion to extend.

Complaints may be made on behalf of a group of people with a protected attribute. For example, unions may make discrimination complaints against an employer on behalf of a group of employees who share the same attribute.

Organisations may make complaints of unlawful conduct as if they were an individual.

What else will the QHRC be doing?

The QHRC will have these additional functions:

• Publishing practice guidelines about discrimination and sexual harassment
• Conducting reviews of an organisation’s programs and practices for compliance
• Advising on action plans; and
• Conducting investigations on its own initiative and providing findings and recommendations (for example, publishing a public report with recommendations, issuing a compliance notice or requiring employers to enter into an enforceable undertaking with the QHRC).

What should employers do to prepare?

The new Act makes it easier for employees to make claims and on more grounds. Along with the commencement from 1 April 2023 of new Work Health and Safety (Psychosocial Risks) Amendment Regulation 2022 and the Code of Practice on Managing Psychosocial Hazards at Work, employers now have more obligations than ever to ensure a workplace is free from discrimination and harassment.

The new positive duties for disability, sex discrimination and sexual harassment, the reverse onus or proof and proactive investigatory role of the QHRC mean that employers need to take proactive steps in the workplace.

For example, employers must

• Conduct workplace risk assessments to identify risk factors for discrimination and sexual harassment.
• Implement prevention plans for discrimination and sexual harassment in the workplace.
• Deliver refresher training to employees to identify discrimination and sexual harassment and what to do about it, including active bystander intervention
• Review recruitment processes to prevent irrelevant information about protected attributes being collected and used and ensuring decisions are merit-based.

The team at Kingston Reid are here to assist if you need support identifying and mitigating the risks within your workplace.

April 4, 2023

After extensive changes to the Fair Work Act 2009 (Fair Work Act) as part of the Secure Jobs, Better Pay amendments, the Federal Government has introduced the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023 (Protecting Workers Entitlement Bill).

What are the key amendments?

The Protecting Workers Entitlement Bill has six key amendments:

1. Increasing protections for migrant workers by ensuring contracts of employment or services will continue to be valid irrespective of immigration status.
2. Changes to unpaid parental leave to align with the recent paid parental leave changes as well as an increase in flexibility in how unpaid parental leave can be taken and the amount of leave that can be taken flexibly.
3. Creating a National Employment Standard entitlement to superannuation.
4. Clarifying that enterprise agreements cease to apply when replaced by a workplace determination.
5. Allowing regular employee authorised deductions for varying amounts to be authorised by a single authority rather than a new one for each deduction.
6. Changes to coal mining long service leave so casuals are treated the same as permanent employees.

The House of Representatives has referred the Protecting Workers Entitlement Bill to the Senate Education and Employment Legislation Committee. The report is due 28 April 2023. We expect the Bill will pass through the Senate with little, if any, real opposition.

Increasing protections for migrant workers

The amendments address the interaction between the Fair Work Act and the Migration Act 1958 (Migration Act).

Migrant workers (including temporary migrant workers) working in Australia will be entitled to the benefit of the Fair Work Act regardless of their immigration status, including where there is a breach of the Migration Act or an instrument made under that act, such as a visa. For example, a migrant worker working in breach of their visa conditions would be entitled to benefits such as annual leave or notice of termination.

The changes will not impact whether a person has the right to work in Australia under the Migration Act, or any consequences of non-compliance with the Migration Act.

Changes to unpaid parental leave

 The use of gendered language such as “he” and “she” and “maternity leave” will be replaced with gender-neutral terms such as “the employee” and “parental leave”.

A further five key changes are in store for unpaid parental leave provisions:

• Employees who are members of “employee couples” (that is, two employees covered by the Fair Work Act even though they may be employed by different employers) will be able to take unpaid parental leave at the same time. They will not be limited to an 8-week concurrent leave period as is the current entitlement.
• Employees will be able to commence unpaid parental leave at any time in the 24 months following the birth or placement of their child.
• Employees will be able to request an extension of their unpaid parental leave regardless of the amount of leave the other parent has taken. Presently, the parental couple is limited to a total of 24 months leave between them.
• The number of flexible unpaid parental leave days will be increased from 30 to 100 to align with changes to the government’s paid parental leave scheme.
• Pregnant employees will be able to access flexible unpaid parental leave in the 6 weeks prior to the expected date of birth.

These amendments will apply where the child’s date of birth, or day of placement, is on or after 1 July 2023.

 Superannuation

The Protecting Workers Entitlement Bill introduces compulsory superannuation contributions to the National Employment Standards.

The proposed entitlement reflects the current obligation under superannuation legislation for employers to make minimum contributions to superannuation funds in order to avoid liability to pay a superannuation guarantee charge.

Inclusion of superannuation as a National Employment Standard entitlement will allow employees, unions, or the Fair Work Ombudsman to directly pursue employers for unpaid superannuation contributions. Consequential amendments will prevent multiple claims being commenced against an employer for the same superannuation shortfall (e.g., Australian Taxation Office under superannuation legislation).

The changes will ensure alignment between these National Employment Standard terms relating to superannuation and terms in Modern Awards.

Workplace determinations

 The Protecting Workers Entitlement Bill clarifies that when a workplace determination comes into operation any earlier enterprise agreement will cease to apply.

This is consistent with the Fair Work Commission’s approach to this issue however it is not currently stated in the Fair Work Act. The amendments expressly clarify the position and remove any doubt as to this sequence of operation.

Authorised deductions

The Bill expands the circumstances in which employees can authorise deductions from wages where they are principally for the benefit of employees.

If ongoing deductions are made, for example for health insurance premiums or under salary sacrificing arrangements, an employee will not need to provide a new written authority to their employer if the amount of the deduction varies.  A single authority will be agreed between the employee and employer for regular deductions.

This provides better protection for employees who potentially could lose the benefit that they receive from deductions. For example, where authorisations have not been proactively managed administratively by the employer by obtaining a new written agreement when the value of the deduction is varied, and a health premium is not paid for health insurance coverage.

A single authority cannot be used where the deduction indirectly or directly benefits the employer, even if the deduction principally benefits the employee.

Coal Mining Long Service Leave

 The Coal Mining Industry (Long Service Leave) Administration Act 1992 (Cth) and Coal Mining Industry (Long Service Leave) Payroll Levy 9 Collection Act 1992 (Cth) will be amended to ensure that casual employees are not treated less favourably than permanent employees in respect of their long service leave entitlements.

Further reforms

 It is likely there will be more amendments to the Fair Work Act this year.

The Government is consulting on further reforms including:

• the characterisation of casual work
• providing the same pay and conditions for labour hire workers as directly engaged employees
• criminalising wage theft
• extending the powers of the Fair Work Commission to include “employee-like” forms of work
• giving workers the right to challenge unfair contractual terms
• allowing the Fair Work Commission to set minimum standards to ensure the road transport industry is safe, sustainable and viable
• providing stronger protections against discrimination, adverse action and harassment
• establishing a single national framework for labour hire regulation
• addressing the impact of the small business redundancy exemption in winding up scenarios to support equitable outcomes for claimants under the Fair Entitlements Guarantee
• further reforms to enterprise bargaining provisions; and
• limiting when demerger ballot applications can be made for registered organisation.

Consultation on these further changes closes in April, and we expect to see further amendments proposed around the middle of this year.

Kingston Reid will keep you updated as these changes unfold.

March 30, 2023

On 28 March 2023, the Full Federal Court of Australia decided employers who require employees to work public holidays breached section 114 of the Fair Work Act 2009 (Cth): Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd

The handing down of this decision just before the Easter and Anzac Day public holidays will ring alarm bells for employers who traditionally roster on public holidays.

Why can’t we just make them work?

Section 114 of the Fair Work Act 2009 (Cth) is a National Employment Standard which entitles employees to not work and be paid for the public holiday.

There is flexibility. However, it requires negotiation and discussion. Employers must first reasonably request the employee to work. The employee may then reasonably refuse the request.

If the employer makes an unreasonable request (ie, a requirement) and the employee works the public holiday, the employer will breach section 114.

Where did they go wrong?

In this case, the employer required its employees to work on Christmas Day and Boxing Day by:

• automatically rostering employees to work public holidays;
• having employment contracts which stated employees “may be required to work on public holidays”;
• providing employees with rosters on a laminated card when they started employment identifying all shifts (including public holidays) they would be required to work; and
• requiring new starters to attend an induction session before starting work during which they were told “employees are rostered to work 24/7 365 days a year. This includes all public Holidays including Christmas and New Years [sic]…”

The employees complied with the requirement to work on public holidays.

What is the difference between a requirement and a request?

The Court analysed the fundamental differences between a “requirement” and a “request.”

It looked at the ordinary meaning of those word and observed “[t]o “request” means “to ask or beg”, “especially politely or formally”. To “require” is to demand or make obligatory”. A “request” is to have a choice as opposed to having an obligation to work.

In this case, the employer required employees to work on Christmas and Boxing Day. This was not a reasonable request under s 114(2).

Importantly, the Court said employees were entitled to ignore the requirement. The employees could have simply not worked and the employer would have had to pay them.

The breach occurred for the employer when the employees complied with the unlawful requirement.

We await the outcome on penalty. The maximum penalty is 60 or 600 penalty units depending on the seriousness of the contravention. This may be significant.

When is a request to work a public holiday reasonable?

Sub-section 114(4) identifies these criteria as being relevant to the reasonableness of either the request or refusal:

• the nature of the employer‘s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
• the employee‘s personal circumstances, including family responsibilities;
• whether the employee could reasonably expect that the employer might request work on the public holiday;
• 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;
• the type of employment of the employee (for example, whether full‑time, part‑time, casual or shift-work);
• the amount of notice in advance of the public holiday given by the employer when making the request;
• in relation to the refusal of a request–the amount of notice in advance of the public holiday given by the employee when refusing the request;

Other circumstances may also be relevant.

For example, it may be reasonable to request employees in critical services such as police, ambulances, fire services and hospitals to request employees to work public holidays. A refusal may be difficult to justify if employees were given enough notice and have no reasonable excuse.

What do employers need to do?

This Decision has significant implications for employers, especially those which are not providing critical services.

For example, when rostering for public holidays:

• issue the roster in draft; and
• give the employees the opportunity of refusing or accepting the request to work a public holiday before it is finalised – this could be supplemented by a separate communication.

Also – make sure that employees are given enough notice.

If employees refuse then speak with them to understand why.

If the refusal is reasonable employees can choose not to work the public holiday irrespective of what the roster says.

Employment contracts may still foreshadow working on public holidays but cannot make that a requirement. Employers should check the wording of their contracts.