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.