key takeaways
Has your business made the proper rostering arrangements to prepare for the public holidays? If holiday staffing is essential to your business’ operational needs, you will need to ensure your rostering practices align with the Fair Work Act’s requirements to avoid risks and penalties this holiday season.
Employees are entitled to be absent from employment on public holidays
Under the National Employment Standards (NES), employees cannot be required to work on public holidays. However, employers can reasonably request that employees work on a public holiday, and employees must comply unless they have reasonable grounds for refusal.
What constitutes a request?
In Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, the Federal Court of Australia clarified that the term ‘request’ follows its ordinary meaning in that an employer must put the question to employees in a manner which gives them the choice of accepting or refusing to work on the public holiday. Employees can then only refuse a request if the request itself is ‘not reasonable’, or where an employee’s refusal is ‘reasonable’.
The Court noted that a requirement is made where the employer indicates that an employee has no choice but to work on a public holiday. A ‘requirement’ that does not allow refusal breaches the Fair Work Act.
what constitutes a reasonable request or a reasonable refusal?
Section 114(4) of the Fair Work Act 2009 provides a non-exhaustive list of the factors for determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, including:
- the nature of the employer’s workplace or enterprise (including 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; and
- any other relevant matter.
From these factors we can see that whether a request or refusal is reasonable or not depends on the employer’s business requirements and remuneration structure, weighed up against affected employees’ personal and employment circumstances.
In some fields where 24/7 and/or year-round service is critical, such as emergency services, it will be possible for employers to essentially require employees to work on a public holiday.
how can employers ensure that requests are reasonable?
Consider the effect of all factors in totality. In Australian Federated Union of Locomotive Employees v Aurizon Operations Ltd [2023] FWC 3473, the Fair Work Commission found that the affected employees could be required to work over the Christmas/Boxing Day public holiday because:
- the employer’s operational requirements required the employee train drivers to work public holidays;
- the affected employees’ remuneration structure was adequate to compensate for the expectation of work on public holidays;
- sufficient notice was given (six weeks); and
- employees had an opportunity to request the Christmas period off when the provisional roster was released.
These factors were weighed against the familial and religious significance of Christmas and Boxing Day.
To ensure that any requests made are reasonable, employers should take the following steps:
- clearly communicate to employees that public holiday work is optional and subject to reasonable requests;
- establish processes for employees to accept or refuse public holiday work requests through policies, contractual terms, and/or staff meetings;
- provide employees ample notice by making any requests for public holiday work far in advance of the rostered date; and
- outline operational needs and reasons for rostering public holiday work.
how we can help
With the Christmas holidays fast approaching, employers will need to act quickly to ensure that public holiday rostering arrangements are prepared in time. If your business requires assistance in understanding its obligations under the Fair Work Act, please reach out to the Employment and Industrial Relations team at McInnes Wilson Lawyers or contact James Christensen (JChristensen@mcw.com.au | (07) 3231 0683).
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