Can an employer require someone to work on a public holiday?
Can an employer require someone to work on a public holiday?

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Can an employer require someone to work on a public holiday?
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Posted:
02/02/2024
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Are you a business that has to operate on public holidays? Surely employees can’t refuse to work on public holidays.

Well, think again. You need to be very carefull on this issue, particularly after a federal court of Australia finding in 2023.

This issue was fleshed out by the full Federal Court earlier this year in CFMMEU v OS MCAP Pty Ltd. Yesterday leave to appeal was refused by the High Court, so the full Federal Court’s decision is now settled law.

Let’s take a look at how this works.

Background

The employer, OS MCAP Pty Ltd, engaged mine workers to work on various mine sites.

To fulfill the contractual targets established by the Daunia owner, OS MCAP had to provide production services continuously, 24 hours a day, throughout the entire year. Adhering to these targets necessitated that no more than 7 employees of OS MCAP could be absent during a single shift.

The employment contracts of the workers outlined the possibility of working on public holidays without additional compensation, as such payments were already included in their base rates. Upon commencement of their employment, the employees were given a roster detailing all shifts, including those on public holidays, that they were obligated to work.

In anticipation of the holiday season, 92 employees submitted leave requests. Due to the aforementioned requirements, OS MCAP couldn’t approve all leave requests. Consequently, OS MCAP conducted a random ballot to select 7 employees whose leave requests would be approved, while the remaining 85 employees were designated to work as per the roster during the Christmas period.

Are employees entitled to be absent from work on a public holiday?

One of the National Employment Standards is that an employee is entitled to be absent from work on a public holiday.

However, an employer can request an employee to work on a public holiday if the request is reasonable.

An employee can refuse the request if either:

👉 the request is not reasonable; or

👉 the refusal is reasonable.

The 8 factors to consider

There are eight factors that need to be taken into account when determining whether a request, or refusal of a request, is reasonable. They include;

  • The employer’s operational requirements,
  • the nature of the employee’s work,
  • whether public holiday work could be expected,
  • the employee’s personal circumstances,
  • whether the employee is entitled to adequate pay for working on a public holiday,
  • whether they are full-time, part-time, casual or a shiftworker,
  • and the amount of advance notice given.

The key word is “request” which, the full Federal Court pointed out, is very different to “require”. It means that an employer does actually need to request an employee to work on a public holiday. It can’t just direct them to work or roster them on without asking. They have to ask and leave room for discussion, negotiation and a possible refusal by the employee.

After doing this the employer can require an employee to work on a public holiday if the request is reasonable and any refusal by the employee is unreasonable.

What if your business needs to operate on public holidays?

This creates a pretty big practical headache for employers who regularly roster employees to work on public holidays. This was brought to the court’s attention but it had little sympathy. It said that, “all that is required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised.”

Similarly, it could be unlawful for an employer to have a clause in a contract or enterprise agreement that requires an employee to work on public holidays. The court did say that a contract could foreshadow that the employee may be asked to work on public holidays. This should also include they may be required to do so where the request is reasonable and a refusal unreasonable. That is, the clause would need to leave room for the employee to refuse public holiday work if reasonable.

Many employers put in place measures to deal with this issue hoping the High Court appeal would change the situation. Unfortunately, that is no longer going to happen.

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