In a decision handed down last week, the Full Court of the Federal Court has found that BHP’s labour hire company contravened section 114 of the Fair Work Act 2009 (Cth) and the National Employment Standards (‘NES’) by requiring a group of employees to work on public holidays.

The decision represents a significant departure from previous interpretations of section 114 and the standard practices of employers across Australia (in many industries and sectors) in respect of how they require employees to work on public holidays. The change comes at short notice, given the upcoming Easter public holidays.

What does section 114 say?

Section 114 of the Fair Work Act states that while an employee is entitled to be absent from work on a public holiday, “an employer may request an employee to work on a public holiday if the request is reasonable.”

What does the decision say?

The Full Court has taken a literal approach to interpreting section 114 and has determined that an employer cannot simply require an employee work on a public holiday.  Instead, the employer must first request that an employee work on a public holiday, ensuring the employee understands that they have a choice to agree or refuse to work on the public holiday. The employee may refuse the request if it is an unreasonable request to make, or if their refusal itself is reasonable. It is only when a request has been made and unreasonably refused by an employee, that an employer can then require the employee to work on the public holiday.

The Full Court accepted that this interpretation of the Fair Work Act means that employers cannot continue the currently common practices of issuing a requirement for employees to work on a public holiday or simply rostering employees to work on public holidays. These practices constitute a ‘requirement’ to work and not a ‘request’, and may place the employer in contravention of the Fair Work Act and expose the employer to the risk of civil penalties of up to $82,500 for companies and $16,500 for individuals.

The Full Court expressed a view that this interpretation still allows employers to issue rosters to employees which include working hours on public holidays, provided that the employer ensures the employees understand that the roster is in ‘draft’, and provided:

• the employees who have been allocated to work on the public holiday can indicate whether they accept or refuse that work; or
• the employer separately makes a request to those employees before the roster is finalised.

The decision also confirms that employers are not able to merely rely on provisions in their employees’ awards, enterprise agreements, or contracts which contain requirements for employees to work on public holidays.  While such provisions may be relevant when assessing the reasonableness of an employer’s request for an employee to work on a public holiday, they would not be decisive, and would not displace the Full Court’s clear interpretation of the NES.

How does an Employer determine what is reasonable?

To determine whether a request, or the refusal of a request, is reasonable, the following factors must be taken into account:

• the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
• the employee’s personal circumstances, including family responsibilities;
• whether the employee could reasonably expect that the employer might request work on the public holiday;
• 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;
• the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
• the amount of notice in advance of the public holiday given by the employer when making the request;
• 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; and
• any other relevant matter.

What should an Employer do to remain compliant?

Given the decision, where an employer is seeking to have employees work on a public holiday, the employer should follow the steps outlined below:

1. Issue a request that the employee works on a public holiday (which might be by way of a ‘draft’ or ‘indicative’ roster), and which provides an explanation as to why the employer believes the request to work on the public holiday is reasonable and inviting a response from the employee as to whether the request is or is not accepted.
2. Where the employee does not accept the request, consider their response and its reasonableness, and then the reasonableness of requiring the employee to work the public holiday.
3. Once the reasonableness and reasons for refusal are considered, make a final decision as to whether you will require the employee to work the public holiday (taking into account all reasonableness factors above) and then communicate this to the employee.

What has changed for casuals?

For casual employees, where the basis of their employment is that they are offered (and may accept) hours of work, we expect that existing arrangements whereby the casual employee is offered hours on a public holiday (and can choose to accept or reject those hours) will be compliant with the Full Court’s interpretation of the NES, as the offer of hours constitutes a request.

Summary

Employers should note that this decision was only handed down on 28 March 2023 and may be subject to an application for leave to appeal to the High Court. We will endeavour to keep employers updated as to the latest changes affecting public holiday work.

If you would like to know more about what you should now be considering when you are requiring employees to work on public holidays, you should contact the specialist employment lawyers at Aitken Legal today.