Employers’ assumptions that employees can be required to work on a public holiday overturned

Employees of OS MCAP Pty Ltd (OS MCAP) were employed under a contract of employment which provided that employees may be required to work on public holidays and also stated that:

‘payment for this expectation has been incorporated into your existing remuneration’.

Employees were employed on a seven day on, seven day off roster pattern, working 12.5 hour shifts.

During August 2019 a number of employees sought annual leave on Christmas Day and Boxing Day. During August and September 2019 there were a number of meetings between the company and employees, and employees were advised that six employees per roster panel could be accommodated for leave on Christmas Day and Boxing Day. However, employees were advised that additional spots were available in two crews to take leave on the public holidays. The company sought expressions of interest and names were picked at random for leave on the two crews. In November 2019, a lower coal production target was determined due to wet weather, and the company advised that employees with special circumstances could raise them with their immediate manager. Following this process, nine requests were granted, primarily due to family responsibilities towards sick or elderly relatives. The requests of others who did not provide reasons, or wanted to be at home with their family were refused. Around 85 employees worked on Christmas Day and Boxing Day.

The Full Federal Court noted that:

17. The undisputed evidence before the primary judge was that OS never made a request of its employees asking them whether they would be willing to work on Christmas or Boxing Day 2019. Rather, there was an assumption that those employees rostered to work on those days would work on those days, unless they applied for leave and it was granted. The primary judge found, at J[96]:

In this case, it is clear that OS required its production employees at the Daunia Mine to work on Christmas Day and Boxing Day. That requirement was expressly conveyed in August 2019 when Mr Hyvonen told B Crew and D Crew that it was expected that the employees rostered to work on Christmas Day and Boxing Day, other than those granted leave, would attend work.

18. OS did not at any time from the inception of employment, communicate with employees that they had the right under s 114 or otherwise to refuse (if the refusal was reasonable) to work on Christmas Day or public holidays generally.

The Fair Work Act (FW Act) provides that an:

• employee is entitled to be absent on a public holiday (s114 (1)),
• employer may request that an employee work on a public holiday if the request is reasonable (s114 (2)),
• employee may refuse the request if the request is not reasonable and the refusal is reasonable (s114 (3)).

To determine whether a request to work on a public holiday is reasonable, there are a number of factors to take into account (s114 (4)), including:

• The nature of the enterprise, its operational requirements and the nature of the work performed by the employee;
• Whether the employee could reasonably expect that the employer may request work on a public holiday;
• Whether the employee is entitled to receive overtime or penalty payments or other compensation for working the public holiday;
• The type of employment of the employee eg casual, part time, full time or shift work;
• The notice in advance of the public holiday by the employer;
• In relation to a refusal by an employee, the notice provided by the employee when refusing the request;
• The employee’s personal circumstances, including family responsibilities;
• Any other relevant matter.

The Court found that the primary position is that an employee is entitled to be absent for work on a public holiday and paid for that absence. The Court found that OS MCAP had not made a request in accordance with s114 of the FW Act, but rather made a requirement to work on a public holiday, and accordingly, OS MCAP had not complied with s114 of the FW Act. The Court also found that the NES standards override contractual and enterprise agreement provisions.

In allowing the appeal, the Full Federal Court said:

5. For the following reasons, this Court allows the appeal. In this Court’s view, a “request” within the meaning of s 114(2), connotes its ordinary meaning, an employer may make a request of employees 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. Ultimately, after discussion or negotiation, the employer may require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable.

The Court also stated that:

43.  Contrary to the conclusion of the primary judge, we do not consider this interpretation “skews” the balance against employers. An employer can ultimately require employees to work on public holidays who are involved in critical services or where it is desirable (although “not critical”) to remain open on public holidays in circumstances where the employer has satisfied the obligations imposed upon it under  s114(2) and (3), namely, that it has made a request, that request is reasonable, and in circumstances where an employee’s refusal is not reasonable (taking into account the factors in s114(4)). There is no preclusion that exists of the kind contemplated by the primary judge.

44.  The Court does not accept the submission of OS that the Union’s interpretation would be inherently unworkable because such an interpretation would mean that an employer could not ever have a roster which included working hours on Christmas holidays or ever contain a contractual requirement. An employer is able to have a roster which includes public holidays. 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, a contract may contain a provision foreshadowing that the employees may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable.

An employer cannot rely on a term in the employee’s contract of employment, enterprise agreement or modern award to require an employee to work on a public holiday. Nor can an employer simply rely on an employee’s roster to require the employee to work on a public holiday.

This decision highlights that an employer must presume all employees will be absent from work on a public holiday and they are required to request that employees work on a public holiday, provided that the request is reasonable. What is reasonable is outlined in s114 of the Act as outlined above and includes the operational nature of the enterprise, that employees would be expected to work the public holiday, the notice provided to employees, penalty payments for working the public holiday and other matters, such as an employee’s personal circumstances.

An employer may require an employee to work on a public holiday, where the employer has made the request, the request is reasonable, and the employee’s refusal is unreasonable.

Employers should consider the following course of action:

• Make requests to employees to work a public holiday in accordance with a roster (published as far as possible in advance), outlining the reasons why the request to work the public holiday is reasonable;
• Assess any individual concerns (such as family responsibilities) and other reasons provided by employees as to why an employee may refuse to work a public holiday;
• Advise the employee/s whether the employer’s request is reasonable and whether an employee’s refusal is unreasonable;
• Review their contracts, policies and procedures;
• Implement and communicate processes internally for making and refusing requests.

Note: We understand from press reports that a decision is yet to be made whether the employer will file an appeal with the High Court.

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