Can employers require an employee to work on a public holiday?

In a major decision regarding the application of the public holiday provisions of the Fair Work Act, the Full Federal Court has found that terms of employment that require employees to work on a public holiday will not be consistent with the National Employment Standards. This is the case even in circumstances where an employer’s operations are conducted over 365 days per year and an employee’s remuneration includes compensation for the requirement to work on those days.

The facts

The case, Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, brought on appeal, involved the terms of employment for workers who were engaged by BHP’s in-house labour hire company, OS MCAP Pty Ltd (OS), to perform work at BM Alliance Coal Operations, Duania Mine.

Employees were engaged under the terms of an employment contract. The contract set out that employees were required to work on a 24/7 roster system, which operated for 365 days per year, and that they ‘may’ be required to work on a public holiday without receiving any additional remuneration. Employees were also informed in their induction that the site roster included days of work on public holidays, including over the Christmas and New Year period.

The CFMMEU commenced proceedings against OS claiming that OS’s requirement for employees to work on a public holiday under the employment contract was inconsistent with section 114(2) of the Fair Work Act. This was because section 114(2):

• entitled an employer a right to request and employee to perform work on a public holiday, in circumstances where that request was reasonable; but also
• entitled an employee a right to reasonably refuse that request.

Furthermore, the CFMMEU alleged that, in circumstances where an employee had a right to reasonably refuse the request, the employee was entitled to be absent from work without loss of pay.

Findings

OS claimed at first instance, and the primary judge accepted, that a ‘request’ to perform work on a public holiday applies not only to an employer’s ‘request’ in the form of a question to employees, leaving the employee with a choice as to whether or not to work on a public holiday, but that a ‘request’ under the Act also applied to a ’requirement’ by an employer for an employee to perform work (where there was no choice for an employee but to work on a public holiday).

However, on appeal, the Full Federal Court did not agree. It found that a ‘request’ within the meaning of section 114(2) connotes its ordinary meaning; that is, an employer may make a request of employees in the form of a question, leaving the employee with a choice as to whether they would agree or refuse to work on the public holiday and that, ultimately, only after discussion or negotiation, an employer could require an employee to work on a public holiday, if the request was reasonable and the employee’s refusal is unreasonable.

What does this mean for employers?

Following this decision, employers need to consider whether their practices in relation to public holidays are consistent with the requirements of section 114 of the Act.

Section 114 of the Act forms part of the National Employment Standards (NES). The NES will override any contract, award or enterprise agreement to the extent of an inconsistency that is detrimental to the employee. What this case requires of employers (even where rosters that contain public holiday work are set well in advance, and the employees have agreed that a term of their employment includes public holiday work) is that, before seeking employees to work on a public holiday, the employer:

• requests (not directs) the employee to work on a public holiday (even if there is a draft roster that has allocated them work on a public holiday)
• ensures the request is reasonable
• indicates that the employee is entitled to refuse the request if that refusal is reasonable under the NES.

In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, section 114(4) provides that the following must be taken into account:

• 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 shiftwork)
• 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
• any other relevant matter.

Where an employer’s request to work on a public holiday is a reasonable request having regard to the factors in section 114 of the Act, and the employee does not have a reasonable basis for refusing the request, the employee will be required to work on the public holiday. In circumstances where their refusal is reasonable, employees will have a right to be absent from work on the public holiday, without loss of pay.