Understanding when employers can request an employee to work a public holiday

The Full Court of the Federal Court of Australia (the Full Court) recently overturned a decision of a single Judge of the Federal Court which found that an employer did not contravene section 114 of the Fair Work Act 2009 (Cth) (the FW Act) by requiring employees to work on a public holiday.

Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, the decision on appeal, resulted in the Full Court allowing the Construction, Forestry, Maritime, Mining and Energy Union’s (the CFMMEU’s) appeal and declaring that OS MCAP Pty Ltd (OS) had contravened section 114 of the FW Act.

Section 114(1) of the FW Act allows an employee to be absent from their employment on a public holiday. Section 114(2) of the FW Act permits an employer to request an employee to work a public holiday. The request can be refused if it is not reasonable, or if the refusal is reasonable.

The key issue on appeal was whether the definition of ‘request’ in section 114 extends to a requirement that an employee work on a public holiday.

Facts

OS employs production employees to operate mobile machinery for its mining clients, one of which is BM Alliance Coal Operations Pty Ltd (BMA) who have a site at Daunia Mine in Queensland. OS had a contractual agreement with BMA to provide production services 24 hours a day, 365 days a year (the Agreement).

OS employees were subject to a contractual provision in their employment contracts stating that they may be required to work on public holidays and that this expectation was reflected in their remuneration. Employees were also informed of this during their induction.

In mid-2019, OS became aware that an influx of employees had applied for leave over Christmas and Boxing Day (25 and 26 December) that year. The number of leave applications exceeded the maximum number of employees OS could afford to have on leave during that time, having regard to its contractual obligations under the Agreement. OS informed employees that only 6 workers from each team would be able to take leave. These workers were selected randomly. After a review of the work requirements following changes to the weather forecast, an additional 9 employees were granted leave as they showed ‘special circumstances’.

On 25 and 26 December 2019, approximately 85 employees were required to work a standard 12.5-hour shift at the Daunia Mine in Queensland. The employees did not receive additional remuneration for those working days.

It was undisputed that OS failed to ask employees if they would be willing to work on Christmas and Boxing Day. They also failed to inform employees of their right to refuse to work on Christmas, Boxing Day or public holidays generally. It was assumed that employees would work those days unless they applied for leave and it was granted.

Decision

The Full Court ultimately found that OS had contravened section 114 of the FW Act by requiring employees to work on Christmas and Boxing Day in 2019.

Firstly, the Full Court noted that the notion that an employee may be required to work on a public holiday is at odds with the employee’s entitlement under section 114(1) of the FW Act to be absent from work a public holiday. The Full Court found that the employee’s right to be absent and to also to be paid for the day of absence on a public holiday cannot be displaced.

The Full Court rejected OS’ argument that a ‘requirement’ to work a public holiday was to be equated with a ‘request’ to work. The Full Court’s view was that a ‘request’ takes its ordinary meaning in that an employer may make a request of employees in the form of a question, and that the decision of whether to work remains the employee’s choice. The Full Court considered the FW Act more broadly and identified provisions that used both terms, ‘request’ and ‘requirement’, suggesting a distinction between the two.

The Full Court differentiated between a ‘request’ which is to ‘ask or beg…especially politely or formally’ and to ‘require’ which is ‘to demand or make obligatory’. The Full Court noted that the primary judge also applied a similar distinction. The Full Court were of the view that conflating a ‘request’ with a 'demand' or making something obligatory ‘is not consistent with what was intended by the legislation, namely that there is a choice’.

The Full Court considered that an employer can still ‘require’ employees to work on public holidays by way of roster provided that the requirements of section 114 of the FW Act are met, those being that an employer has satisfied the obligations to make a request, the request is reasonable, and the employee’s refusal is unreasonable.

Take Home Messages

It is crucial for employers to recognise that regardless of the industry they work in, there are entitlements in the FW Act that cannot be displaced, such as the right of an employee to reasonably refuse to work on a public holiday. Where an employer seeks to request an employee to work on a public holiday, they must ensure the proposal is put forward as a request and the choice of whether to accept is left in the employee’s hands.

However, employers should bear in mind that an employee’s refusal must be reasonable. Industries that provide critical services (such as police, ambulance services and hospitals) may require their employees to work on public holidays due to public safety and public welfare. In this instance, a request may be made by an employer and any denial to work may not be reasonable due to the nature of the work.

Employers should review their current contractual and employment terms relating to work on a public holiday to ensure they have satisfied the requirements of the FW Act above.

For more specific information or advice on any of the material contained in this article please contact Sathish Dasan on + 61 8 8217 1337 or sdasan@normans.com.au, or Anastasia Gravas on + 61 8 8210 1331 or agravas@normans.com.au, or Divya Narayan on +61 8 8210 1279 or dnarayan@normans.com.au.