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  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.
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:
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:
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:
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.
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:
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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Erin Lynch, Partner
Diana Diaz, Special Counsel