New Rules for Public Holiday Rosters

On 28 March 2023, the Full Court of the Federal Court of Australia (FCFCA) handed down its decision in CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51. The FCFCA has set the principle that employers cannot roster their employees to work on public holidays without the employee’s consent.

CFMMEU v OS MCAP Pty Ltd

OS MCAP Pty Ltd engaged employees on contracts that incorporated provisions that employees may be required to work on public holidays. Employees were informed that their remuneration incorporated compensatory consideration for working public holidays, and as such no public holiday rates were payable.

OS MCAP Pty Ltd provided each employee with their roster that incorporated all public holiday’s that an employee was expected to work.

In August 2019, numerous employees submitted annual leave applications for Christmas Day and Boxing Day, of which only 9 requests were approved by OS MCAP Pty Ltd. The remaining 85 employees were required to work standard 12.5-hour shifts on both Christmas Day and Boxing Day, with no additional remuneration paid for hours worked on these public holidays.

CFMMEU argued that OS MCAP Pty Ltd had breached section 114 Fair Work Act 2009 (Cth) (FW Act) on the basis that this section meant an employee was not required to work on public holidays, but rather a reasonable request could be made that could be refused by the employee, provided that the refusal itself was not unreasonable.

The fundamental issue was that OS MCAP Pty Ltd did not ask its employees if they were willing to work on the public holidays, but rather assumed the rostered employees would work those days unless annual leave was granted by OS MCAP Pty Ltd.

What does the legislation say?

The relevant provision, section 114 FW Act, which provides for “entitlement to be absent from employment on public holiday”, states that:

• “an employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.”

Reasonable requests to work on public holidays can be made to employees, on which basis:

• “an employer may request an employee to work on a public holiday, if the request is reasonable;
• if an employer requests an employee to work on a public holiday, the employee may refuse the request if:

(a) the request is not reasonable; or
(b) the refusal is reasonable.”

Decision

The FCFCA ultimately found in favour of CFMMEU, on the basis that the employees were entitled to be absent from work, in accordance with the entitlement under section 114(1) FW Act. The provision should be interpreted as granting employers the right to request that employees work on public holidays, however such a request could be refused in accordance with section 114(3) FW Act.

Instead, OS MCAP Pty Ltd had imposed a requirement on its employees to work public holidays, as was provided for in the employment contracts. As such, this could not be characterized as a request under section 114 FW Act.

Who does the new change apply to?

The FCFCA clarified that the determination is applicable to all workers who are required to work on public holidays, regardless of their employment status.

The impact will be seen across a range of industries, including aged care, hospitality, and retail.

What does this change mean for employers?

The FCFCA has solidified another significant step towards fortifying and further protecting the rights of employees, in particular to protect them from being unfairly coerced into working public holidays when they do not wish to do so.

This decision will now prevent employers from automatically rostering employees to work on public holidays, and instead requires a procedural approach to obtaining employee’s consent that is more in line with the provisions of the FW Act and protections under the National Employment Standards (NES).

Employers may still retain a clause in their employment contract that employees may be required to work public holidays, however this cannot be a mandated expectation.

Modern awards and enterprise agreements also cannot mandate an expectation that employee’s work on public holidays.

Employers should be vigilant when preparing rosters for their employees, including taking the following steps:

• preparing rosters in advance to provide enough time to sufficiently roster for public holidays;
• establishing a system for issuing and monitoring requests to employees to work public holidays;
• providing employees with valid reasons and explanations for why they are requested to work on a public holiday;
• ensuring employees are aware they can refuse a request that is unreasonable, and giving them the opportunity to accept or reject the proposed roster; and
• establishing a procedure to consider if, where an employee rejects the request, it is still reasonable for the employee to work on that public holiday as requested.

In essence, employers are required to:

• not mandate employees working on public holidays;
• make a request to the employee to work on a public holiday, ensuring the employee is aware they may refuse the request;
• ensure the request by the employer to work is reasonable; and
• provided the request is reasonable, an employee can only refuse to work the shift if the refusal is also reasonable.

In considering if an employee’s refusal is reasonable, the employer should consider the circumstances outlined in section 114 FW Act which refers to:

• the nature of the employer’s workplace and the nature of the work performed by the employee;
• the employee’s personal circumstances, including family responsibilities;
• whether the employee could reasonably expect the employer might request they work;
• whether the employee is entitled to receive overtime payments or penalty rates;
• the type of employment of the employee, including full time, part time, or casual;
• the amount of notice given by the employer when making the request;
• the amount of notice given by the employee when making the refusal; and
• any other relevant matter.

Consequences

Employers should be aware that failure to implement the new requirements for public holiday requests can result in penalties under the NES.

These penalties range from $16,000 to $82,000 for individuals, and $165,000 to $825,000 for corporations.

Further assistance

It is important that employers understand their legal obligations under this new precedent set by the FCFCA when requesting employees work on public holidays.

It is equally important for employees to understand their rights to refuse, and when they may otherwise be required to work.

If you require further advice or are unsure of your entitlements under this new change, the Workplace Relations team at Coulter Legal can assist you. Contact us today.