A decision of the Federal Court has significantly changed the way employers must go about organising employees to work on a public holiday.
There are 11 National Employment Standards (NES). One of these Standards entitles all permanent employees to be absent and be paid for a public holiday if they would otherwise have worked on that day (or part-day).
An employer may “request” an employee to work on a public holiday if that is reasonable. An employee has the right to refuse the request if the request is not reasonable or they have a “reasonable” reason for refusing. Section 114 of the Fair Work Act 2009 (Cth) goes on to set out what is a “reasonable request” by an employer, and what is a “reasonable” refusal by an employee.
Some employees, such as boarding staff, may be expected to work on public holidays as a condition of their employment. Others may be expected to work the occasional public holiday when the situation arises.
A recent Federal Court decision (CFMMEU vs OSMCAP Pty Ltd [2023] FCAGFC 51) has put a spanner in the works by interpreting the relevant NES more strictly. Under this new interpretation:
Also, it seems that a “standing agreement” by an employee to work all public holidays as directed will probably not be acceptable to the Court, especially as it is predictable that an employee’s circumstances, and family responsibilities in particular, may change.
The Fair Work Act sets out the matters that must be taken into account when deciding if a request by an employer to an employee to work on a public holiday is reasonable. The following must be considered:
An employee has the right to refuse a request to work on a public holiday if:
To decide if an employee’s refusal is reasonable, an employer must take into account the same criteria that they needed to use in making their request:
In the case of boarding employees, several factors will often be assumed and accepted by both parties when running through the considerations outlined in the dot points above. For example, it is usually a given that the nature of the work requires 24/7 operations, and that public holiday rates will be paid as mandated in the awards or enterprise agreements.
For non-boarding staff, working on a public holiday may be expected and predictable if they work in departments that have annually occurring camps, sporting tournaments or performing arts competitions during, for example, the Easter long weekend. Other staff may be directed to assist in co-curricular activities or extra-curricular activities on public holidays, where this is less predictable.
However, as pointed out in the Federal Court decision, the nature of the work and whether employees should have expected to work on the public holiday are not the only factors that must be considered; the key factor is that employees must be given a choice, although within certain limits, to refuse to work on a public holiday.
Even if an award, enterprise agreement or letter of offer/contract of employment provides for an employee to work on a public holiday, an employer should take the following steps:
In practical terms, the draft roster or the direction should be given sufficiently in advance to enable the employer time to consider the reasons why an employee is refusing to work and then find alternative staff (and give them the opportunity to refuse).
What happens if:
This is a complex issue: directing an employee to work in such circumstances could entangle an employer in questions of an employer’s right to issue lawful and reasonable directions, the risk of adverse action claims as the employee is enforcing a workplace right, or discrimination, for example, on the basis of carer responsibilities. In these circumstances, it may be time to call a lawyer.