Generally, pursuant to section 114 of the Fair Work Act 2009 (Cth), employees are entitled to be absent from their employment on a day or part-day that is a public holiday. However, an employer may request an employee to work on a public holiday if the request is reasonable.
Following a recent Federal Court decision, this standard has changed and now more is required to constitute a reasonable request.
Summary of the Recent Decision
In March 2023, the Full Court of the Federal Court of Australia determined the case of Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51.
That case is in relation to an appeal by the Union against OS MCAP the employer, who is a labour recruitment company for the mining company BHP. In summary, the Union contended that OS MCAP had breached the National Employment Standards for rostering employees to work on Christmas Day and Boxing Day. Those employees did not receive any additional remuneration as those public holidays were part of their normal roster.
The Federal Court found that simply rostering an employee to work on a public holiday is not enough to be a reasonable request. Employers must now ask workers if they want to work on public holidays, they cannot automatically roster them on.
Pursuant to the Fair Work Act, employees are entitled to refuse the request if the request is not reasonable or if the refusal is reasonable. What is ‘reasonable’ will depend on a number of factors such as individual circumstances and whether it would be reasonable to expect the employer to request work on that particular day.
In this case, the Federal Court found that the employer had contravened the National Employment Standards contained in the Fair Work Act.
Key Takeaways
It is important for employers to be mindful that breaches of the National Employment Standards may attract harsh financial penalties. For contraventions employers may be fined up to $165,000.
Employers must make a reasonable request to roster an employee to work on a public holiday. A failure to do so may be seen as a breach of section 114 of the Fair Work Act.
If you are an employer who has a question regarding public holidays or employment law in general, please contact Aaran Johnson or Simon Kumar to discuss how Marsdens can assist your business.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
