As the Christmas season approaches, you may be wondering if you can direct your employees to work on public holidays. The short answer is that employers may request but cannot require an employee to work on a public holiday. This comes from the recent decision by the Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd (No 2) [2023] FCFCA. The implications stemming from this case are significant for businesses and organisations trading or operating on public holidays.
So What are the Rules?
The National Employment Standard on public holidays entitles an employee to be absent from his or employment on a public holiday and paid their base rate of pay for the ordinary hours of work on that day. However, an employer may request an employee to work on a public holiday, but an employee may refuse the request if the request is unreasonable, or the refusal is reasonable. This will also be the case where the employment contract states that the employee must work on a public holiday.
In the court’s words
‘An employer is able to have a roster which includes public holidays. All that is required is that an employer ensures the employees understand either that the roster is in draft requesting those employees … 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 the refusal unreasonable.’
Is the request or refusal reasonable?
The factors that must be considered in determining whether a request is not reasonable or the refusal reasonable are provided for in the NES:
- 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 shift work);
- 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.
What does this mean for you?
Require does not equate to request. Therefore, an employer may only now make a request if reasonable considering the factors listed in the NES above. However, an employer can ultimately require employees to work on public holidays who are involved in critical services e.g., hospitals, aged care, public transport, and emergency services, or where it is desirable (but not critical) to remain open on public holidays e.g., retail, tourism, and hospitality. Employers will have to change the way in which they engage or roster employees on public holidays.
Your Next Steps
Approaching the Christmas and holiday season you must implement the following:
- Ensure that all relevant employment contracts state that employees may be requested to work on public holidays where it is a reasonable request to do so, and where refusal is unreasonable in the circumstances.
- A roster that includes public holidays must be circulated in advance or prior to finalisation requesting employees that have been allocated to work on the public holiday to either accept or refuse the rostered days allocated and if refused, the reasons for refusal.
- Whether or not an employee can be required to work on the public holiday depends on the reasonableness of the request weighed against the reasonableness of the refusal considering the factors listed in the NES.
How to respond employee refusals
Steps to Take Where an Employee Refuses a Request:
- Using the above factors for reasonableness, assess whether your request may be considered reasonable e.g. the operational needs of the business
- Arrange a meeting with your employee to discuss their circumstances
- Assess whether they may have reasonable grounds to refuse, taking into account their relevant circumstances (e.g., expecting overseas family, death of a family member etc)
- Assess and weigh the factors when coming to a conclusion
- Decide whether to accept or reject the grounds of refusal. In the circumstance where you believe that refusal is unreasonable, this must be communicated to the employee with an explanation as to your reasons
- Ensure that appropriate notice is provided in writing.
Note: It is crucial to note that reasonableness varies significantly based on the specific industry. Sectors like hospitality often set a higher threshold for what qualifies as acceptable grounds for refusal.”
Further information
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