A recent decision surrounding BHP’s in-house labour hire company confirms that employers must request for employees to work public holidays, instead of unilaterally deciding to roster them on a public holiday.
In the case CFMMEU v OS MCAP Pty Ltd, the Federal Court held that OS MCAP Pty Ltd breached the National Employment Standards by requiring employees to work a standard 12.5 hour shift on each of December 25 and 26, 2019. The key to this decision was that under section 114(2) of the Fair Work Act, “an employer may request an employee to work on a public holiday, if the request is reasonable”.
It was viewed that within section 114(2), the word ‘request’ equates to the employer having to specifically ask the employee in the form of a question, leaving the employee with the option to agree or refuse to work on the public holiday. This arises under section 114(3), which allows the employee to refuse the request if it is not reasonable, or the employee’s refusal is reasonable.
Section 114(4) outlines the criteria needed to be considered when deciding if the request, or the refusal of that request, is reasonable:
- the nature of the workplace,
- the role and type of work the employee does,
- the employee’s personal circumstances (including caring responsibilities),
- employment status (full-time, part-time or casual),
- whether the employee could reasonably expect that they might be asked to work on the public holiday,
- any overtime, penalty rates or other payment the employee might receive,
- the amount of notice provided by the employer,
- any other relevant factor.
The practical outcome is that the NES establishes that employers cannot simply direct employees to work or roster them to work on a public holiday, without first asking beforehand, as without a specific request employees may not understand that they can refuse the request and can then feel compelled to work on a public holiday.
Being a “request” rather than a unilateral requirement allows the opportunity for discussion and negotiation regarding the matter.
This case further established that it could be unlawful for an employment contract to require an employee to work on public holidays. The case did outline that “a contract may contain a provision foreshadowing that the employees may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable.” This means the clause would need to give the employee the opportunity to refuse a request where reasonable.
Managing the challenges associated with public holidays can be stressful and time-consuming for employers that will often have plenty of other things to focus on. ER Strategies specialises in assisting employers to meet their obligations towards their employees and takes the stress out of being unsure as to what to do.
Clients of ER Strategies can give us a call on 1300 55 66 37 if you have any questions regarding the requirements surrounding public holidays. For non-clients, give us a call on the same number or click the button below. We’d love to see how we can help you and your business.