As part of normal operations, many employers need their employees to work on public holidays, especially those in retail, hospitality, health, security, and IT industries. A recent decision by the Full Court of the Federal Court of Australia (FCFCA) has clarified the ability of employers to direct their employees to work on public holidays. The decision is controversial and will have practical implications for many businesses.
In CFMEU v OS MCAP Pty Ltd  FCAFC 51, OS MCAP Pty Ltd (the Employer) had entered into employment contracts with its employees which expressly provided that the employees may be required to work on public holidays and that their remuneration had been set to compensate them for this requirement.
In August 2019, a number of employees submitted leave applications for Christmas Day and Boxing Day. This prompted a meeting at which the Company advised the employees that due to operational requirements, for each roster only 6 employees could be accommodated for being absent from work on Christmas Day and Boxing Day. If exceeded, as a result, the employer could breach contractual arrangements with its major client requiring services coverage 24 hours a day, 365 days per year. The employer commenced the roster arrangement with employees accordingly.
The CFMEU applied to the Federal Court with an application alleging that the employer breached the National Employment Standards (NES), in particular section 114 of the Fair Work Act 2009 (FW Act).
This section relevantly states as follows:
- (1) 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.
- (2) However, an employer may request an employee to work on a public holiday if the request is reasonable.
- (3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if the request is not reasonable or the refusal is reasonable.
Section 114 (4) provides that in determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, specified factors must be considered, including but not limited to the nature of the employer’s business, the employee’s personal circumstances, and whether the employee could reasonably expect that the employer might request work on the public holiday.
In the first instance, the Federal Court dismissed the CFMEU’s application. However, on appeal, the CFMEU was successful. In particular, the Full Court of the Federal Court held that the employer breached section 114 of the FW Act because it had effectively assumed that employees rostered to work on Christmas Day and Boxing Day would work unless they applied for leave and it was granted. This application was not correct. Employees are entitled not to work on public holidays.
Where an employer seeks employees to work on a public holiday, any request can be made provided it is reasonable. An employee may refuse such a request if the refusal is reasonable (having regard to factors set out in section 114(4) of the FW Act).
What this decision means for employers
In consequence, employers should not simply roster their employees to work on a public holiday and assume the employees will work that day unless they apply for leave. An employer should expressly communicate with their employees to request that an employee attend work in circumstances where an employer needs employees to work on a public holiday. If an employee responds that they refuse to work on the public holiday, the employer may then determine whether that refusal is reasonable. This process may likely result in increased disputes with employees.
Given that employees may refuse requests to work on a public holiday if it is reasonable, employers that currently do not pay employees any loadings or penalties for public holiday work (for example, an annualised salary) may need to reconsider those arrangements where public holidays coverage is needed, to incentivise employees to agree to work on public holidays.
Contract of employment
Further, employers may wish to review their standard employment contracts to ensure they reflect the fact that employees may be reasonably requested to work on public holidays and may only refuse such a request if it is reasonable. An employee cannot agree in advance that they will be unilaterally required to work on a public holiday.
An employer may be exposed to applicable penalties for breach of the FW Act where that employer does not make a request in accordance with the NES, in circumstances where employees may be required to work on a public holiday.
Jobs Australia will continue to monitor this important area of Workplace Relations and will update Members on any further developments.