Can employees be forced to work public holidays?

The Federal court decision in CFMEU v OS MCAP Pty Ltd has drawn plenty of attention as to whether employees can be forced to work public holidays.

On Christmas Day and Boxing Day in 2019, approximately 85 employees worked a standard 12.5 hour shift at the Daunia Mine, near Moranbah in central Queensland. The relevant employees did not receive any additional remuneration for working those days. The Fair Work Act 2009 (the Act) provides that employers may request that an employee work on a public holiday, and the request can be refused if it is not reasonable or the refusal is reasonable.

The employer’s head contract with the mine committed the employer to ensure that it had employees available to work on Christmas Day and Boxing Day. The employment contract between the employer and the employees clearly states that in accordance with your roster type, you may be required to work on public holidays and payment for this expectation has been incorporated into your existing remuneration.

When employees realised that their roster pattern fell on Christmas Day and Boxing Day in 2019, they started to put in leave requests. Meetings were held between management of the employer and the employees. Employee were told that the employer could only accommodate six employees for each roster panel being absent from work on Christmas Day and Boxing Day. To be fair, names were to be drawn out of a hat. Some employees were entitled to leave for special family circumstances. However, the employer 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 court found that:

1. standard position under the Act is that an employee is entitled to be absent from his or her employment for a day or part day that is a public holiday. Not only is the employee entitled to be absent but also is entitled to be paid for that day of absence.
2. an employer is able to roster employees on public holidays. The employer must ensure the employees understand either, (1) where the roster is in draft, the employer makes a request to employees who have been allocated to the holiday work, and they indicate whether they accept or refuse, or (2) make the request before the roster is finalised.
3. 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 is unreasonable.

How should the employer have acted?

The court found that the employer should have requested that the employees work on the public holiday. It is for the employer to justify why, having made the request, the request is reasonable by virtue of operational requirements, contractual requirements, or the nature of its enterprise such as emergency services. If the request is reasonable, the employee must work unless the employee has a reason for refusal which is reasonable. Whether the employee’s refusal is reasonable must involve a consideration of the following:

1. the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
2. the employee’s personal circumstances, including family responsibilities;
3. whether the employee could reasonably expect that the employer might request the employee work on the public holiday;
4. 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;
5. the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
6. the amount of notice in advance of the public holiday that is given by the employer when making the request;
7. in relation to the refusal of a request—the amount of notice in advance of the public holiday that is given by the employee when refusing the request;
8. any other relevant matter.

Had the employer made a request, instead of a demand, the outcome would have been different.

At this stage, the court has simply declared that the employer contravened section 44 of the Act in respect of each of its production employees who were required to perform work on the public holidays. The proceedings will go back before the court for determination of any compensation payable to the employees and quantifying any penalty payable by the employer.

If you require employees to work public holidays and would like more information and/or advice on how to navigate this new decision, please contact our Employment Team on (02) 4927 2900.