Every Employee Should Know This Right - Joseph Grassi + Associates

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Employers who force their employees to work on public holidays with no option to take the day off could find themselves in hot water, thanks to a recent landmark case in the Federal Court of Australia. The Court found that mining giant BHP breached section 114 of the Fair Work Act 2009 (Cth) by forcing its employees to work on Christmas Day and Boxing Day.

Section 114 states ‘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’. While an employer may exercise their power to merely request staff work on public holidays, they cannot oblige them to work, as was the case with BHP.

This decision applies to all workplaces and affirms the National Employment Standards (NES), overriding any contracts, enterprise agreements, mandates and awards which compel employees to work on public holidays. Indeed, if an employer forces (as opposed to requests) an employee to work on a public holiday, and the employee goes on to work the public holiday, this could constitute a breach of the Fair Work Act.

Essentially, an employer may request an employee to work on a public holiday if the request is reasonable, and an employee may then provide a reasonable refusal.

What is the effect of the decision?

The Full Court ruling has determined that an employer cannot require an employee to work on a public holiday. Instead, they must request that their employee work on a public holiday and upon acceptance, roster them on. This ensures that the employee has a choice to agree or refuse to work on a public holiday, as opposed to being automatically rostered on.

An employee can refuse the request and take the day off if they have reasonable grounds or if the employer’s request is unreasonable.

When determining whether a request or refusal of a request to work on a public holiday is reasonable, several factors must be considered. These include, but are not limited to:

The nature of the employer’s workplace/enterprise (for example, operational requirements);
The nature of the work performed by the employee and whether they might reasonably expect to be requested to work the public holiday;
The employee’s personal circumstances (for example, family responsibilities)
The type of employment of the employee (including whether overtime and/or penalty rates are payable and reflect the expectation of working on the public holiday); and
The amount of notice of the request given in advance of the public holiday.

Section 114(4) of the Fair Work Act provides a comprehensive list of factors to consider when determining whether you might be entitled to reasonably request your employee to work, or refuse to accept a request from your employer to work, on a public holiday.

What should an employer do?

An employer who contravenes the Fair Work Act risks significant civil penalties of up to $16,500 for individuals or $82,500 for companies, so it is important to issue a request that the employee works on a public holiday (by way of a draft or indicative roster, for example).

The request must explain why it might be reasonable to expect the employee to work on the public holiday and allow for the employee to respond by way of acceptance or refusal.
If employee refuses the request, consider section 114(4) as to the reasonableness of the refusal.
Once considered, make a final decision as to whether you will require the employee to work the public holiday.

Requesting, rather than commanding, an employee to work prompts discussion and negotiation between the parties, in turn creating fairer outcomes for employees.

The power imbalance between employers and employees is set to shrink with this new ruling, making it clear that a request to work on a public holiday should be the beginning of the conversation, not the end.

Based on the judgment handed down in Construction, Forestry, Maritime, Mining and Energy Union v OS MCA Pty Ltd [2023] FCAFC 51.

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