In a decision that has potential to impact industries including mining, manufacturing, retail, hospitality, logistics, health and emergency services (amongst others), the Full Bench of the Federal Court of Australia has recently determined that employers have an obligation to request that employees work on public holidays, instead of simply rostering them on.
The background
The respondent, OS MCAP Pty Ltd (Employer) employs production employees (Mine Workers) to operate mobile machinery on mine sites, including the Daunia Mine in central Queensland.
The Mine Workers were engaged by the Employer on contracts which included a term that the Mine Workers:
- could be required to work on public holidays; and
- would not receive any additional payment for such work, as payment would be included in their remuneration.
In the lead up to the 2019 Christmas period, the Employer became aware that a number of the Mine Workers had submitted requests for annual leave for Christmas Day and Boxing Day.
As the Employer’s contractual arrangements at Daunia Mine allowed for a maximum of seven Mine Workers per roster to be absent on planned leave at any one time, the Employer was not able to approve all the annual leave requests.
In the interest of fairness, the Employer implemented a ballot system to select the seven Mine Workers whose leave would be approved. The remaining 85 Mine Workers were required to work the Christmas Day and Boxing Day public holidays.
The decision
The Construction, Forestry, Maritime, Mining and Energy Union (Union) brought proceedings against the Employer alleging that by imposing a requirement to work on a public holiday, the Employer had breached one of the National Employment Standards (NES) – being section 114 of the Fair Work Act 2009 (Cth) (FW Act) and therefore contravened section 44 of the FW Act, which provides that an employer must not contravene a provision of the NES.
Section 114 of the FW Act relevantly states that:
'Employee entitled to be absent on public holiday
(1) 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.
Reasonable requests to work on public holidays
(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.
(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:
(a) the request is not reasonable; or
(b) the refusal is reasonable.'
The Union argued that the Employer had not made any “request” that the Mine Workers work on the public holidays.
The Employer contended that a “request” included a “requirement” to do so, as set out in the Mine Worker’s contracts.
The primary judge found in favour of the Employer. The Union subsequently filed an appeal.
In the appeal decision, the Full Court found in favour of the Union as it held that by imposing a “requirement” which could not be refused, the Employer had not made a “request” as required by section 114 of the FW Act.
The Full Court held that a specific “request” was required in order to be consistent with the purpose of the NES, which was to provide employees with a minimum entitlement to be absent, with full pay, on public holidays, unless specific exceptions applied – being that a reasonable request was made for which there was no reasonable basis to refuse.
The Court has remitted the proceedings to the primary judge for determination on the questions of remedy and penalty.
Implications
It should no longer be assumed that inclusion of a requirement to work on public holidays in an employment contract is sufficient to satisfy section 114 of the FW Act.
Employers should urgently review their procedures to ensure that they have not inadvertently contravened s114 of the FW Act and thereby opened themselves up to proceedings alleging contravention of s44 of the FW Act, which may give rise to the imposition of a civil penalty.
Employers requiring employees to work on public holidays should consider implementation of an immediate policy regarding such requests which includes:
- the employer making express written requests for work as far in advance of a specific holiday as possible;
- a requirement for an employee to provide written notice of any refusal of such a request within a set timeframe (generally 14 days is considered reasonable);
- a process for consideration of any refusal and determination of whether the employer can insist upon work having regard to the factors set out in section 114(4) of the FW Act, being:
- 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.
Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51
