Requesting that employees work on public holidays: Are you getting it right?

Does this sound familiar?

Employee:        “But it’s Anzac Day”.

Manager:          “Sorry, the roster says you’re working”.

Employee:        “Suppose I don’t have a choice then“.

An appeal decision of the Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (OS MCAP) has given clarity to the way that employers must go about rostering employees for work on public holidays.

Although there is no change in the relevant legislation, the Full Court’s decision will require some organisations to review how they go about rostering staff on public holidays.

The relevant statutory provisions

Before we consider the decision in OS MCAP, let us take a step back and consider what section 114 of the Fair Work Act 2009 (Cth) (FW Act) says.

In summary, section 114 states that:

• employees are entitled to be absent from their employment on public holidays;
• employers may request an employee to work on a public holiday, if the request is reasonable; and
• if an employer requests an employee to work on a public holiday, the employee may refuse the request if:
  • the request is not reasonable, or
  • the refusal is reasonable.

The section also sets out the considerations that must be taken into account in determining whether an employer’s request, or an employee’s refusal of a request, are reasonable. Those considerations are:

• 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; and
• any other relevant matter.

What had the employer in OS MCAP done?

OS MCAP Pty Ltd (OS) employed production employees to operate mobile machinery for mining clients. In this case, it was important that OS had entered into a contract to provide its client with production services on a 24/7 basis, two weeks on, and two weeks off.

In rostering employees for work on public holidays, OS had:

• on commencement, given employees a roster on a laminated card which identified all of the shifts, whether they were seven days on or seven days off, including the public holidays they would be required to work;
• required new starters to attend an induction session which included a PowerPoint that stated that employees were ‘rostered to work 24/7 365 days a year’ including all public holidays;
• told employees that they would be rostered to work on Christmas Day and Boxing Day and that they were expected to work unless they applied for, and were granted, leave; and
• in one year, allowed employees to be away on a public holiday by ‘pulling out names’ and telling them that in future years this would happen by way of expressions of interest.

The decision

The Full Court in OS MCAP was asked to consider what an employer must do to make a ‘request’ for the purposes of section 114 of the FW Act and come to a view as to whether the employer in that case had complied with section 114.

In order to comply with section 114, the Full Court held that a ‘request’ under section 114 must be in the form of a question, ‘leaving the employee with a choice as to whether he or she will agree or refuse to work on the public holiday’. In considering past cases on what constitutes a ‘request’, the Full Court noted that a request would leave room for negotiation and discussion.

The Full Court distinguished a ‘request’ from a ‘requirement’ to work a public holiday, with the latter indicating ‘there is no choice for an employee but to work on a public holiday.’

The aim of having employers make a request (rather than a ‘requirement’), the Full Court argued, was to confront ‘the inherent power imbalance that exists between employers and employees’, which might result in employees feeling ‘compelled, and not understand, that they have the capacity to refuse a request that is unreasonable or where their own refusal is reasonable’.

OS was ultimately found to have breached section 114 in respect of employees who worked on certain public holidays because it ‘required’ employees to work on a public holiday and essentially denied the employees the opportunity to refuse the request as anticipated by the section.

Despite all of the above, the Full Court acknowledged that it would still be possible under section 114 to effectively ‘require’ an employee to work a public holiday. The Full Court reasoned that if an employer makes a reasonable request for an employee to work on a public holiday, and that request is made in a way that leaves room for negotiation and discussion, the employee must work unless the employee has a reason for refusal that is reasonable.

What should employers do to ensure they comply?

It is yet to be seen whether the decision will be appealed. However, unless and until that happens, employers should expect to comply with the Full Court’s decision when requesting that employees work on a public holiday.

This means that in order to comply with section 114 of the FW Act and the decision in OS MCAP, employers should:

• ensure that they request that employees work on public holidays in a way that gives the employees a choice as to whether the employee will agree or refuse to work on the public holidays – that might be by:
  • ensuring employees understand that a roster is in draft, and requesting those employees who have been allocated to the public holiday indicate whether they accept or refuse that allocation, or
  • making a request about an employee’s willingness to work on a public holiday before the roster is finalised;
• give employees plenty of notice of a request to work on a public holiday;
• include terms in their employment contracts, policy manuals and/or enterprise agreements that flag that the employer may request them to work on a public holiday, and where a request is reasonable, that they may be required to work on a public holiday if their refusal is unreasonable; and
• keep records of any requests (including the reasons for the request) as well as records of any responses and any subsequent discussions or negotiations with employees.

Employers should note that adding wording to contracts, enterprise agreements or policies to deal with the decision in OS MCAP will not allow them to require or direct an employee to work on a given public holiday – the requirements of section 114 (which is part of the National Employment Standards) must still be met. However, language in contracts, enterprise agreements or policies might help an employer justify why a request to work on a public holiday is reasonable based on grounds such as operational requirements, or the nature of its industry or enterprise.

Should you wish to discuss your existing public holiday rostering arrangements, including understanding the effect of the decision on existing enterprise agreement terms, please contact Gadens’ Workplace Advisory and Disputes team.

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Authored By:

Erin Lynch, Partner
Diana Diaz, Special Counsel