A recent full court ruling of the Federal Court of Australia (‘Full Court’) has provided guidance around what is expected from employers when scheduling employees to work on Public Holidays.

The following article examines the decision and provides ways to roster employees to work on public holidays that fit within the current expectations.

The background

On Christmas Day and Boxing Day 2019, approximately 85 employees of BHP's in-house labour hire provider, Operations Services ('OS'), worked a standard 12.5 hour shift at the Daunia Mine, near Moranbah in central Queensland. The Construction, Forestry, Maritime, Mining and Energy Union raised a dispute that OS required the employees to work on the public holidays and, as a result contravened section 114 of the Fair Work Act 2009 (Cth) (‘FW Act’).

Section 114 of the FW Act is a National Employment Standard and it states that 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.” The section further clarifies that it is possible for an employer to make a request that an employee work, and an employee refuse such a request, if done so on reasonable grounds.

The employees who worked Christmas Day and Boxing Day 2019 were not asked to work. Instead, following consultation with the greater workforce regarding the limits on who can take those days off for the business to operate, there was an ‘assumption’ that unless the rostered employees applied for leave, and it was granted they would work.

The decision

In an appeal of an earlier decision, the Full Court determined that as there was no request, meaning the employees were unable to refuse such a request. As there was no request, and no chance to refuse such a request, there was no consideration over whether it would have been reasonable to make a request, or whether it was reasonable for an employee to refuse a request.

In the absence of a request, the decision states “…employees will often feel compelled, and not understand, that they have the capacity to refuse a request that is unreasonable or where their own refusal is reasonable. The requirement that there be a “request” rather than a unilateral command, prompts the capacity for discussion, negotiation and a refusal.”

Importantly, the Full Court considered the steps taken by OS in making employees aware that they may be required to work public holiday. These steps included terms within the employment contract and information provided during the employee’s induction. The Full Court also considered that employers involved in critical services or where it is desirable, although not necessarily critical, to remain open on public holidays may still require employees to work on public holidays, so long as they make the request and the employee’s refusal is not reasonable.

Despite these considerations, the Full Court continued to find that the employer had contravened section 114 of the FW Act in requiring those employees to work on 25 and 26 December 2019.

What can members do?

It is unlikely that all businesses involved in critical services or where it is desirable, although not necessarily critical, to remain open on public holidays are currently making a request to each employee to work on a public holiday. The practices undertaken by OS are fairly common among these types of businesses and have generally been considered as reasonable. Thankfully, the ruling hasn’t completely removed the suitability of the practices, rather it contemplates one additional step that must be taken.

Employees must have a reasonable understanding that when the employer first asks them to work a public holiday, that they can refuse such a request.

Ideally, a request is:

This may be burdensome for some businesses but there are other ways that a request can be made.

Interestingly, the decision provides a specific means to provide a request that is likely to be less burdensome for some employers. The Full Court in its decision states that it would be reasonable to post a roster with employees working public holidays, in the first instance, so long as the employer notifies employees that:

It is still relevant to ensure employees are of any expectations to work public holidays and the likelihood that a request to take a public holiday may be refused where the request is not reasonable. The right to require employees to work on a public holiday, under reasonable circumstances, has not changed.

Decision

A copy of the Full Court decision can be downloaded from: Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (28 March 2023)

Psychosocial Hazards – Business Chamber Queensland blog

Last week we published an article of the Managing the risk of psychosocial hazards at work Code of Practice 2022(‘Code’) which came into effect on April 1.

TheCode will apply to anyone who has a duty of care to manage the risks associated with psychosocial hazards in a workplace.  

Refresh yourself on what it means by reading Business Chamber Queensland’s blog.

Read blog post here.

Member webinar

Business Chamber Queensland members will soon be invited to attend an informative webinar that will be run in conjunction with DWF Risk consultants on Friday 21 April at 11am.

Registration details will be forwarded to members in the next week. Please keep an eye out for more information soon.

Further information and assistance

Business Chamber Queensland members requiring assistance with workplace matters are encouraged to contact the Workplace Advisory Services team on telephone 1300 135 822 or via email: advice@businesschamberqld.com.au.