A recent decision by the Full Court of the Federal Court of Australia (FCFCA) in CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51 has provided much-needed clarity on an employee’s entitlement to be absent from work on public holidays, provided by the National Employment Standards. In essence, the decision has confirmed that employers may request, but cannot require, an employee to work on a public holiday.
Background
This matter arose when the CFMMEU took issue with BHP’s in-house labour provider (OS MCPA) policy of requiring employees to work on public holidays. OS employees were required to complete a standard 12.5-hour shift at the Daunia Mine on Christmas Day and Boxing Day, without receiving any additional remuneration for this shift. For these employees, Christmas Day and Boxing Day fell during their normal roster, according to which employees would work 7 days on, 7 nights on, and 7 days off. The employees’ employment contracts with OS stipulated that employees must work on public holidays if rostered but could apply for leave. When more employees applied for leave than could be accommodated, OS operated with a policy of drawing employees’ names from a hat at random, to determine those that would be required to work on the public holiday.
The CFMMEU argued that requiring these employees to work on the Christmas and Boxing Day public holidays contravened section 114 of the Fair Work Act 2009 (Cth). This section forms part of the National Employment Standards and provides employees with an entitlement to be absent from work on a public holiday unless the employer makes a reasonable request that the employee attend work on the holiday.
The decision at first instance, and on appeal, rested on whether OS had made a reasonable “request” that the employees work on the Christmas and Boxing Day public holidays within the meaning of section 114.
At first instance, the primary judge held that OS had not breached the NES, specifically section 114 of the Fair Work Act 2009 (Cth), which grants employees the right to be absent on public holidays without any loss of pay unless the employer has made a reasonable request that the employee work, and the employee has no reasonable excuse for refusing the employer’s request. The primary judge found that OS’s requirement that employees work unless annual leave is granted was equivalent to a request to work, and this request was reasonable given the need to operate the mine on public holidays.
The Appeal
On Appeal, the FCFCA overturned the primary judge’s decision. The FCFCA examined the meaning of “request” in section 114, and held that a “request” must involve a proposition put to employees “in the form of a question, leaving the employee with a choice as to whether he or she will agree or refuse to work on the public holiday.” The Court emphatically stated that “after discussion or negotiation, the employer may require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable”.
On this basis, it was held that merely rostering a worker to work on a public holiday is not a request from the employer that the employee work, regardless of whether the public holiday would have otherwise fallen within the employee’s regular work roster.
Effect of this Decision
This decision impacts employers who operate a roster which includes work on public holidays. These employers should review their employees’ working arrangements in relation to upcoming public holidays.
The decision clarifies that employers are responsible for expressly “requesting” that employees work on a public holiday. The requirement that employers issue a “request”, rather than a unilateral command to work on a public holiday, seemingly encourages negotiation between the employer and employee, and affords the employee an opportunity to decline the request.
