On 28 March 2023, a Full Federal Court decision has held that employers cannot rely on enterprise agreements or contracts requiring employees to work on public holidays. The case of CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51 has shown that contracts which "require" an employee to work on public holidays is a contravention of section 114 and a breach of the Fair Work Act 2009.

However, employers are still entitled to "request" that an employee work on a public holiday as long as the employee is given a choice on whether or not to work on that public holiday and that request is reasonable.

The impact of this case on employer/employee relations is immediate and significant.

Background

OS MCAP Pty Ltd (OS), the respondent, employed production employees to operate machinery such as shovels, excavators, loaders and trucks for its mining clients. On April 2019, OS commenced operations at Daunia Mine for its client, BM Alliance Coal Operations Pty Ltd.

The employees which were represented by CFMEU (The Union), the applicant, were employed under a standard form contract and were provided with a laminated roster which specified which days throughout the year they would work (Including public holidays).

On August 2019, OS was aware of the fact that many of their employees were requesting annual leave falling on the 25th and 26th of December. OS's policies required that only a maximum of 7 employees from each crew can request leave on public holidays. Due to the volume of applications, OS decided to assign leave on each date through a lottery system. In total, 85 employees who had requested leave on those dates had worked 12.5 hour shifts on the relevant dates.

The Relevant Provision and Issue

Fair Work Act 2009 - Section 114

Entitlement to be absent from employment on public holiday

Employee entitled to be absent on public holiday

(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.

Reasonable requests to work on public holidays

(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.

(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

a. the request is not reasonable; or

b. the refusal is reasonable.

The central issue of this case is whether the primary judge erred in determining that the exception under section 114(2) of the FW Act applies where the employer does not request but rather imposes a requirement on an employee to work on a public holiday.

The Union argued that the requirement that employees may be required to work on public holidays is at odds with the construction of s 114(1) of the FW Act as the word "requirement' cannot be equated with "request" under s 114(2). OS contended that requirement should be equated with request and that they were not in breach of s 114(1).

The Decision

The Court clarified the distinction between the words "require" and "request" agreeing with the trial judge that:

A request leaves the responder with a "choice as to whether or not to do the thing". A "requirement involves asking or demanding that a person do something in a manner that indicates that there is no option but to comply". At [27]

The Court made it clear that the word "request" envisaged circumstances where there is room for an employer and employee to discuss or negotiate the terms of the request. A unilateral condition of employment requiring employees to work without giving them leeway to discuss the request would not give effect to the ordinary meaning of the term, "request".

The construction of the Act shows that there is first, a request in the ordinary sense that is known the employee and that they can refuse the request, that there is a choice and the request impliedly shows that employees have a right to take a paid public holiday and refuse it.

The Court found that request could never be equated to requirement and the use of the word "requirement" in the standard form contracts was a contravention of s 114 of the FW Act.

Key Takeaway

  • While OS may attempt to appeal this to the High Court, the decision still stands for the time being.
  • The request to work in advance of the public holiday should be communicated to the relevant employees rather than dealt with in rosters or employment contracts.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.