Employers must be aware of the consequences of the recent decision of the Full Court of the Federal Court (Court) about employees' entitlement to be absent on a public holiday.
In Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd  FCAFC 51, the Court overturned a decision of the Federal Court, finding that the primary judge erred in his Honour's interpretation of 'request' under section 114 of the Fair Work Act 2009 (Cth) (FW Act).
Section 114 of the FW Act provides that an employee is entitled to be absent on a public holiday, but an employer may request the employee to work on a public holiday if the request is reasonable. If the request is not reasonable or the employee's refusal is reasonable, then the employee may refuse to work on the public holiday.
What happened in the case?
The case concerned production employees of Daunia Mine who were required to work on 25 and 26 December 2019 (Christmas Day and Boxing Day), which were both public holidays, to ensure the employer could meet various contractual obligations.
The employees were engaged pursuant to a standard form contract which foreshadowed that employees 'may' be required to work on public holidays and receive no additional remuneration. Each employee received a laminated roster card at the commencement of their employment, indicating that they were required to work on those public holidays.
In response to requests for annual leave, the mine's labour hire company, OS MCAP Pty Ltd (OS), undertook a process whereby they randomly selected six applications for leave to be granted for the two public holidays and required all other 85 employees to work.
The Construction, Forestry, Maritime, Mining and Energy Union (Union) submitted that OS did not 'request' the employees to work, but required them to work. The Union argued that a requirement to work on a public holiday can never be a "request [that] is reasonable" under section 114 of the FW Act. OS submitted that 'request' under section 114 included a 'requirement' to work on a public holiday.
At first instance, the primary judge found in favour of OS' interpretation, being that 'request' covers both when an employer leaves the employee with a choice as to whether or not to work on the public holiday and when an employer requires the employee to work on a public holiday where no request was made.
However, on appeal, the Court found in favour of the Union and declared that OS contravened the FW Act in respect of each of its production employees by requiring those employees to work on 25 and 26 December.
The remainder of this article explores key findings by the Court in relation to what 'request' means in the context of employer obligations when asking employees to work on a public holiday, and provides guidance on how best to manage this issue.
What does 'request' mean?
The Court's view of a 'request' within the meaning of section 114 of the FW Act is that it connotes its ordinary meaning - an employer may make a request of employees in the form of a question, leaving the employee with a choice as to whether they will agree or refuse to work on a public holiday. Ultimately, after discussion or negotiation, the employer may require an employee to work on a public holiday if the request is reasonable and the employee's refusal is unreasonable.
The Court considered that the purpose of section 114 is to ensure that an employee is entitled to be absent from their employment on a public holiday and paid for that absence. This also informs what the anterior purpose of 'request' is in this context. The apparent purpose of an employer being required to make a 'request' includes "leaving room for negotiation and discussion" about the exercise of the entitlement to be absent from work on a public holiday.
The Court did not consider that this interpretation 'skews' the balance against employers. An employer can ultimately require employees to work on public holidays if they are involved in critical services or where it is desirable for the business to remain open on public holidays. This is as long as:
- the employer has made a request for an employee to work on a public holiday
- that request is reasonable
- the request is made in circumstances where an employee's refusal is not reasonable.
OS submitted to the Court that the Union's interpretation would be inherently unworkable because such an interpretation would mean that an employer could not ever have a roster which included working hours on Christmas holidays or ever contain a contractual requirement. The Court rejected that submission.
Instead, the Court opined that an employer can have a roster which includes public holidays, provided that the employer ensures that employees understand either that:
- the roster is in draft, requesting those employees who have been allocated to work during the public holiday indicate whether they accept or refuse that allocation; or
- where a request to work on the public holiday 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 be required to do so where the request is reasonable and a refusal is unreasonable.
In short, a 'request' to work on public holidays under section 114 of the FW Act does not include a 'requirement' to do so.
The Court further observed that the entitlement to be absent under section 114 of the FW Act could not be displaced by any contractual arrangements. This is because the section falls within the National Employment Standards.
How to manage the upcoming public holidays?
Employers can no longer automatically roster their employees to work on public holidays. Instead, to manage the upcoming holidays, employers should provide employees with:
- a draft roster that includes public holidays or a request for employees to work specific public holidays, even if employees are contractually obligated to work on these days
- an opportunity for employees to respond, and if necessary, have employees provide reasons why they cannot work on a public holiday
- an explanation for why it is reasonable for employees to work on the public holiday.
If an employee refuses the request, the employer must consider whether the employee's refusal is reasonable, taking into account:
- the nature of the employer's workplace, 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
- the amount of notice given by the employer in advance when requesting the employee to work on the public holiday
- the amount of notice given by the employee in advance if they refuse the employer's request to work on the public holiday
- any other relevant matter.
The employer must communicate the final decision to the employee. The employee must comply with the request if it is reasonable, unless the refusal is also reasonable. Whether or not an employee's refusal is reasonable will essentially depend on the same factors as the request.
Importantly, this process creates a dialogue that allows for discussion, negotiation and a refusal before a confirmed roster is issued to employees.
If you have any questions about this article or the laws around employees working during public holidays, please get in touch with a member of our national Workplace Relations & Safety team below.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.