?The Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v. OS MCAP Pty Ltd. confirmed that in order to comply with the National Employment Standards (NES), employers must first ask employees to work on public holidays if they want them to do so. Employees must know they have a choice whether to work the public holiday.
This decision will impact employers that operate rosters on public holidays. Employers should ensure they are aware of this decision and its implications.
Implications for Employers
Based on the court’s construction, an obligation on an employee to work requires both the employer’s request to work to be reasonable and any refusal by the employee to work to be unreasonable. Although administratively burdensome, there is no mechanism in the Fair Work Act 2009 (Cth) (FW Act) to roster employees to work a public holiday without first reasonably requesting that employees do so and providing them with the opportunity to reasonably refuse.
Employers must now review both how they notify public holiday shifts to employees and relevant employment contracts to ensure that: 1) employees understand they have the opportunity to refuse public holiday shifts; and 2) relevant operational circumstances that result in a requirement to work being reasonable are clearly set out.
Unlike the situation before the Full Court, many employees are paid penalties for working public holiday shifts. Ensuring these penalties form part of the public holiday shift request may go some way to ensuring such shifts are accepted by employees.
Background
The decision involved an appeal by the CFMMEU against an earlier decision of the Federal Court, seeking orders that the employer, OS MCAP Pty Ltd., contravened the NES—specifically Section 114 of the FW Act—by requiring employees to perform work on the Christmas Day and Boxing Day public holidays in 2019.
The employer provided services at the Daunia Mine on a continuous basis—24 hours a day, 365 days a year. The employees’ terms of employment specifically provided that employees would be rostered seven days on, seven days off, and may be required to work on public holidays.
Ahead of the Christmas holiday period in 2019, the employer communicated to employees that only six employees could be absent per shift, with contingency for one other employee to take unplanned leave per shift. In response to multiple leave applications for the Christmas holiday period, it randomly selected employees who would be permitted to be absent on Christmas Day and Boxing Day. Nine further requests for leave were granted based on special circumstances. There was evidence that another employee wished to take leave due to his personal circumstances but did not apply as he considered his request would be refused.
Grounds of Appeal
The CFMMEU submitted that, under the NES, employees are entitled to be absent on public holidays, employers can request an employee to work on a public holiday if the request is reasonable, and an employee may refuse that request if the request is unreasonable or the refusal of the request is reasonable in the circumstances. Accordingly, the CFMMEU submitted, as the employer in this matter did not make a request, Section 114(2) of the FW Act had not been complied with, and any subsequent requirement to work public holidays absent the request was therefore contrary to the NES.
The employer denied it had contravened Section 114 of the FW Act on the basis that for the purposes of Section 114 of the FW Act, a “request” also meant a request to require employees to work on a public holiday, even when that may indicate to employees that they had no choice but to work on a public holiday.
Full Court’s Decision
Section 114(1) entitles an employee to be absent from work on a day or part day that is a public holiday. An exception to this is when the request from the employer to work is reasonable and the employee’s refusal is not reasonable.
The Full Court determined that a “request” for the purposes of Section 114 of the FW Act is the employee having a choice whether or not to work the public holiday and that a “request to require” was not a request within the ordinary meaning of that term. The court found that the right of refusal required there to be scope for discussion and negotiation between the employer and the employee about working on a public holiday.
Accordingly, the court was of the view that a breach of Section 114 of the FW Act occurs not at the point of the request or failure to request, but at the point of requiring an employee to work a public holiday without first having made the request.
In rejecting the employer submission that the union’s interpretation would be inherently unworkable, the court referred to an employer issuing a draft roster and an employee being able to indicate whether they accept or refuse that allocation. Similarly, the court said, “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.”
Lucienne Mummé and Evan Mentiplay are attorneys with Johnson Winter Slattery in Melbourne, Australia. © 2023 Johnson Winter Slattery. All rights reserved. Reposted with permission of Lexology.