Pretty Please - Employers must request employees to work on public holidays

Posted by May 17, 2023 | Articles | No Comments
Sick & carer's leave

On 28 March 2023 the Full Federal Court handed down a decision with major effects across various industries, regarding rostering employees on public holidays. The Court found that the employer Respondent, OS MCAP Pty Ltd, had contravened the Fair Work Act in rostering its employees to work on two public holidays, without providing reasonable requests beforehand.

OS MCAP employed machinery operators at mine sites for clients such as BMA. OS MCAP’s contract with BMA required a commitment that they provide production services to BMA ’24 hours a day, 365 days a year’ – including public holidays such as Christmas Day. Not having enough employees rostered to work on public holidays put OS MCAP at risk of not meeting its contractual obligations and thus risking BMA terminating the contract with OS MCAP. Its employee contracts stated that employees may be required to work on public holidays, and that payment for this expectation was incorporated into their existing remuneration.

OS MCAP noticed that out of approximately 85 employees rostered to work on Christmas Day and Boxing Day, a number of them were requesting leave. Only seven employees could be absent from the roster, so OS MCAP approved leave requests by drawing a ballot. Employees who were not drawn from the ballot had to work on these public holidays.

Findings by the Court

The Full Court overturned the primary judge’s decision, finding that OS MCAP’s requirement to work on Christmas Day and Boxing Day contravened section 114 of the Fair Work Act 2009 (Cth),

Section 114 provides that employees are entitled to be absent from work on public holidays. Where employers would like an employee to work on a public holiday, they must make a request which is reasonable. However, employees may refuse the request if it is unreasonable, or their refusal is reasonable.

OS MCAP failed to request that employees work on public holidays, assuming that they would be obliged to work in accordance with the terms of employment contract which stated that they may be required to do so. The Court reasoned that imposing a requirement to work on public holidays did not constitute a request. Consequently, OS MCAP will be required to pay penalties for the contravention.

Ramifications for employers and key takeaways

  • Many employment contracts across many industries and workplaces contain clauses purporting to require employees to work on public holidays at the direction of the employer. Those clauses breach the Fair Work Act and expose the employer to penalties.
  • Employees are entitled to be absent from work on public holidays.
  • Employers cannot assume that an employee will work on a public holiday and automatically roster them; they must actively request whether the employee will work on that day.
  • Employees may refuse the request if it is not reasonable, or if their refusal is reasonable, having regard to a range of factors including their family responsibilities and whether they get paid extra.

Reception and future

Commentators have noted that this request to work is administratively burdensome, raising concerns about how this decision will impact employers who operate on public holidays – particularly those in the hospitality industry and critical services such as emergency services. OS MCAP is considering an appeal of this decision to the High Court.