A recent Federal Court decision received a lot of media attention and caused a lot of confusion for employers and employees.

The decision considered the provisions of the National Employment Standards (NES) which give employees the right to be absent on public holidays and employers the right to seek that employees work on such days.

The decision highlights the need for employers to request, rather than simply require, that employees work on a public holiday. An employee who is requested to work on a public holiday may refuse the request if the request is not reasonable, or the employee has a reasonable basis for refusing to work. If the employee does not have a proper basis for refusing the request, the employee may ultimately be required to work on the public holiday.

Background

The decision related to an employer’s requirement that their employees worked shifts on Christmas Day and Boxing Day in 2019.

The union argued that because the employer had imposed a requirement that employees work on a public holiday in accordance with a roster that it had issued, the employer had breached section 114 of the NES. The employees were employed under standard employment contracts which indicated that employees may be required to work on public holidays and receive no additional remuneration.

The employer did not make a request to any of its employees asking whether they would be willing to work on Christmas Day or Boxing Day in 2019. Instead, a roster was issued that scheduled employees to work on those days. The employer effectively assumed that employees would work on those days unless they applied for leave, and it was granted.

Federal Court decision

The Federal Court found that the employer had required the employees to work on the relevant public holidays and had not engaged in discussions or negotiations. This meant that the employer had breached the Fair Work Act 2009 (Cth) (FW Act).

Section 114 (set out in Annexure A below) of the FW Act gives employees a right to be absent on a public holiday, but subsection 114(2) permits an employer to request that an employee work on a public holiday and section 114(3) permits employees to refuse if either the request to work is unreasonable or if the refusal itself is reasonable.

In deciding whether a request or a refusal is reasonable or unreasonable, the various factors in section 114(4) must be considered.

The Federal Court emphasized the need for an employer to request rather than simply require that employees work on a public holiday.

Can employees ever be required to work on a public holiday?

Yes. An employer can require employees to work on a public holiday depending on the specific circumstances and after the employer first follows a process that involves them requesting or asking the employee to work.

The Federal Court held that an employer can ultimately require an employee to work on a public holiday:

“…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)).”

What options are available to employers?

The decision indicates that employers must not simply roster employees to work on public holidays. Instead, they should ensure that any such roster constitutes, or is accompanied by, a request that employees work on a public holiday.

Where an employer intends to operate on public holidays and wants its employees available to work on those days, a provision can be included in their contracts which specifies that they may be requested to work on public holidays, and they may in some circumstances be required to work on those public holidays, where the request is reasonable and their refusal to work is unreasonable. Even if the contract has such a provision, an employer will still be required to request employees to work on public holidays.

Where an employer is preparing a roster period which includes public holidays, it could specify that the draft roster constitutes a request to work on a public holiday and that employees should advise if they cannot work on the relevant day in question.

Alternatively, an employer could issue a request to employees to work on a public holiday, separate to any roster.

Attachment A
Section 114 of the Fair Work Act 2009 (Cth)

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.