In a decision that is likely to have a major impact on businesses that operate on public holidays, the Federal Court has found that employers can only require employees to work on public holidays, where they first have ‘requested’ the employees to work.

 

What happened in the case?

The CFMMEU (‘the Union’) brought a claim against an employer alleging that the employer had contravened section 114 of the Fair Work Act 2009 by requiring a number of its employees to work on Christmas Day and Boxing Day in 2019.

On appeal the Federal Court upheld the Union’s claim.

Central to the case was the meaning of section 114 of the Fair Work Act which refers to an employer’s ability to “request” an employee to work on public holidays, and for an employee’s ability to refuse the request if to do so is reasonable.

 

Background to the case

The employer (‘OS’) employed production employees on mine sites pursuant to written contracts which stated: “Your roster pattern will be 7 days on, 7 off, 7 nights on, 7 off working 12.5 hour shifts plus reasonable additional hours as required….Please note 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.”

Due to work requirements a number of employees were rostered to work on Christmas Day and Boxing Day 2019 as part of the employer’s usual rostering arrangements. There was no specific “request” for employees to work.

 

Public holidays in the Fair Work Act

Section 114 of the Fair Work Act states as follows:

114 Entitlement to be absent from employment on public holiday

Employee entitled to be absent on public holiday

(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.

Reasonable requests to work on public holidays

(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:

(a) the request is not reasonable; or

(b) the refusal is reasonable.

(4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:

(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

(b) the employee’s personal circumstances, including family responsibilities;

(c) whether the employee could reasonably expect that the employer might request work on the public holiday;

(d) 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;

(e) the type of employment of the employee (for example, whether full‑time, part‑time, casual or shiftwork);

(f) the amount of notice in advance of the public holiday given by the employer when making the request;

(g) 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;

(h) any other relevant matter.

 

What did the court decide?

The court held that the meaning of the above provisions is that in all circumstances where public holiday work is needed, an employer must first request an employee to perform the work. It is only where the request is reasonable (and the refusal is unreasonable) that an employee can then be required to work.

In other words, there is no ability to simply require an employee to work a public holiday on reasonable grounds, rather a compulsory step that must be taken in the process is that employees are first requested to work, which they must have an opportunity to agree to or refuse. 

If they agree to work, then no issues arise. However, where an employee wishes to refuse the request, it is only where they do not have reasonable grounds to refuse, that they can then be required to work (and their refusal is “overruled”).

The court found that the purpose of the provisions of the Fair Work Act are to promote a discussion between employers and employees about public holiday work, rather than giving an employer a unilateral right to direct public holiday work on all occasions.

The court made the following important points in this regard:

  1. [….] In the decision of Shop, Distributive & Allied Employees Association v Woolworths Ltd [2012] FCA 540, Barker J opined that the apparent purpose of an employer being required to make a “request” included “leaving room for negotiation and discussion” about the exercise of the s 114(1) entitlement: at [20]–[21] and [39]. We concur.

 

  1. It is clear from one’s consideration of the words contained within the entirety of the section, that the word “request” connotes the ordinary meaning of the word and envisages a circumstance where there is not a unilateral condition of employment requiring an employee to work on a public holiday, but rather the purpose is to allow an employer in circumstances where the request is reasonable, to ask an employee to work on a public holiday, so as to precipitate a discussion or negotiation, as identified by Barker J above, and most particularly the opportunity for an employee to refuse such a request in reasonable circumstances. […]

 

  1. The intended mischief the provision confronts is the inherent power imbalance that exists between employers and employees. By virtue of this imbalance, employees will often feel compelled, and not understand, that they have the capacity to refuse a request that is unreasonable or where their own refusal is reasonable. The requirement that there be a “request” rather than a unilateral command, prompts the capacity for discussion, negotiation and a refusal. […]

 

  1. [….] An employer can ultimately require employees to work on public holidays who are involved in critical services or where it is desirable (although “not critical”) to remain open on public holidays in circumstances where the employer has satisfied the obligations imposed upon it under ss 114(2) and (3), namely, that it has made a request, that request is reasonable, and in circumstances where an employee’s refusal is not reasonable (taking into account the factors in s 114(4)). […] 

 

  1. The Court does not accept the submission of OS that the Union’s interpretation would be inherently unworkable because such an interpretation would mean that an employer could not ever have a roster which included working hours on Christmas holidays or ever contain a contractual requirement. An employer is able to have a roster which includes public holidays. All that is required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised. Similarly, 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 unreasonable.

 

  1. [….] It may be, as OS suggested, administratively burdensome for a mine to have to make a request rather than be able to require employees to work on public holidays. However, the legislation intends to confront this very mischief: To ensure that employers do not so require employees to work on public holidays absent the request being reasonable or the employee being able to refuse to work in reasonable circumstances.

 

Key take-aways

Going forward it will be necessary that where an employer wishes an employee to work on a public holiday that the employer makes a request (not a requirement) for the employee to work on that day.

There is no guidance in the Fair Work Act about what form a request must take, so there is no requirement that the request must be in writing. 

Rosters which include public holiday work must be expressed as being in draft, or framed as a request to work a particular pattern of work, if they are presented to employees before a request to work a public holiday has been made.

The employee must be capable of accepting or refusing the request. So long as the request was reasonable, and the refusal to work would be unreasonable, an employee can still be required to work – even if they wish to refuse a shift.

This means that the employer will need to ascertain the employee’s reasons for refusing the request, so the employer can assess whether the employee has reasonable grounds for refusing the request (using the factors mentioned in s.114(4) above).

The employer will then need to be able to explain to the employee why the refusal is unreasonable (if they take the position it is) and that the employee is required to work in any event.

Requiring an employee to work on a public holiday (so long as they have first been requested to do so) is therefore likely to be possible where the work is critical to the employer’s business, the employee has been given sufficient advance warning, etc. 

It is envisaged that the consequence of the court’s decision will be that there will be added bureaucracy for many businesses because they will:

  • have to build into their rostering processes the ability for employees to consider “requests” to work public holidays
  • have to collect information about the reason for the refusal from employees who wish to refuse to work
  • then the employer will need to explain to employees when a refusal to work a public holiday is deemed unreasonable. 

It is also likely that conflicts may arise where an employee is requested to work a public holiday, but their wish to refuse the shift is then overruled on the basis that the employer says they do not have reasonable grounds to refuse to work.

Contracts and policies should also be reviewed to ensure that they are worded in a way consistent with the interpretation of the Fair Work Act ie above: ie that they state that employees may be requested to work on public holidays and may be required to do so only where the request is reasonable and a refusal unreasonable.

 

Need further help?

If you need further assistance in relation to this matter, please contact us.

 

Disclaimer

The information provided in these blog articles is general in nature and is not intended to substitute for professional advice. If you are unsure about how this information applies to your specific situation we recommend you contact HR Connect for advice.

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