A recent decision of the Full Court of the Federal Court of Australia has clarified the steps that employers must follow if they need their employees to work on a public holiday.
In CFMMEU v OS MCAP1, the Full Court determined that employers must first request their employees to work on a public holiday and allow the employees to exercise their right under the Fair Work Act 2009 (Cth) (FW Act) to refuse the request on reasonable grounds. Employers cannot bypass this obligation to first ask an employee to work on a public holiday, and instead just require the employee to work on the public holiday, including by rostering the employee on that day. This is the case even if the employer believes the requirement is reasonable in the circumstances.
The employer engaged production employees to operate mobile machinery on mine sites throughout Australia, including at the Daunia Mine site in central Queensland.
The employer engaged its employees under a standard form of employment agreement which provided that the employees may be required to work on public holidays with no additional remuneration for such work. The employer also had a practice of issuing rosters to the employees, setting out the public holiday shifts the employees were required to work. New employees were also required to attend an induction session during which they were advised that they would be rostered to work on public holidays.
In August and September 2019, having already rostered the relevant employees to work on the Christmas Day and Boxing Day public holidays later that year, the employer received numerous leave applications from the employees for these days. However, the employer could only allow a certain number of employees to be absent on these days and since more than this number of employees had submitted leave applications, the employer randomly chose which employees would be permitted to take the requested leave. The remaining employees were required to work on the public holidays.
The CFMMEU commenced proceedings against the employer in the Federal Court seeking orders that the employer had contravened section 114 of the FW Act, one of the National Employment Standards, by requiring employees to work on these public holidays. The Federal Court dismissed the CFMMEU’s application, and the CFMMEU appealed to the Full Court.
The Primary Issue: What is a “Request”
Section 114 of the FW Act gives employees an entitlement to be absent from work on public holidays. The section also provides that an employer may request an employee to work on a public holiday if the request is reasonable, but the employee may refuse the request if the request is not reasonable or if the refusal is reasonable.
The primary issue in this case was what constituted a “request” for the purposes of section 114 of the FW Act. The employer contended that a reasonable requirement issued to an employee to work on a public holiday was synonymous with a “request”, whereas the CFMMEU contended that if an employer required an employee to work on a public holiday and did not reasonably ask the employee to do so, this amounted to a contravention of section 114.
It was not in dispute that the employer had not asked the relevant employees to work on the Christmas Day or Boxing Day public holidays. Instead, it was assumed that the employees rostered to work on those days were required to do so unless they applied for leave and their leave request was granted.
The Full Court accepted the CFMMEU’s argument and overturned the earlier decision of the Federal Court, finding that the employer had contravened section 114 of the FW Act.
The Full Court determined that if an employer needed an employee to work on a public holiday, the employer must first request the employee to work on that day, and the request must be reasonable in the circumstances. Employers cannot unilaterally demand their employees to work on a public holiday, nor can employers rely on a term in an employment agreement, modern award or enterprise agreement which requires work to be performed on a public holiday.
Rather, the Full Court observed that the request must provide the employee with the choice of either accepting or refusing the request. If the employee accepts the request, then there is no issue with the employer requiring the employee to work on that public holiday. If the employee refuses the request, then consideration must be given by the employer as to whether the employee’s refusal is reasonable in the circumstances. If the employer’s request is reasonable, and the employee’s refusal is not reasonable, the employer may then require the employee to work on that public holiday, notwithstanding the employee’s refusal.
The question of reasonableness will generally be determined by reference to the matters set out in sub-section 114(4) of the FW Act, which include the nature of the employer’s workplace and the nature of the work performed by the employee, the employee’s personal circumstances, whether the employee will be compensated for working on the public holiday, the amount of notice given by the employer of the request, and the amount of notice given by the employee of the employee’s refusal.
Employers will need to reconsider their current approach to working arrangements on public holidays, particularly if this involves automatically rostering employees to work on these days. Although administratively burdensome, employees should proceed by issuing the rosters that cover public holidays in advance and in draft form and should make it clear to the employees that they can accept or refuse their proposed shift on the public holiday. If an employee refuses, consideration will then need to be given to whether the reasons for the refusal are reasonable.
Employers will also need to revisit their employment agreements to ensure that any provisions therein dealing with work on public holidays are consistent with this decision – namely, these provisions should simply foreshadow that employees may be asked to work on public holidays. Employment agreements should not stipulate that employees are, or may be, required to do so.
If you have any questions about what this decision means for your business, please contact Addisons’ employment law team.
1 Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd (No 2)  FCAFC 51.