21 Nov HIGH COURT REJECTS BHP’S BID TO CHALLENGE PUBLIC HOLIDAY DECISION

The High Court has rejected BHP’s bid to challenge a full Federal Court ruling clarifying when an employer can request an employee to work on a public holiday and when an employee can reasonably refuse a request.

What happened?

In April this year, BHP filed an application on behalf of OS MCAP, seeking special leave to contest the Full Court of the Federal Court of Australia’s decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (“OS Case”).  In the OS Case, it was ruled that BHP’s in-house labour supplier unreasonably required up to 85 production employees to work across Christmas holidays in 2019, in breach of NES obligations under s114 of the Fair Work Act 2009 (Cth) (“FW Act”).  Today, 21 November 2023, the High Court rejected BHP’s special leave application.  As a result, the OS Case decision stands.

What is the OS Case?

On 28 March 2023, the Full Court of the Federal Court of Australia handed down its decision in the OS Case. The issue in this case surrounded the proper construction of section 114 of the FW Act, which relates to public holidays.

Section 114 of the FW Act provides that 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.  However, an employer may request an employee to work on a public holiday if the request is reasonable.

If an employer requests an employee to work on a public holiday, the employee may refuse the request if:

• the request is not reasonable; or
• the refusal is reasonable.

In the OS Case, employees were provided with a roster on a laminated card at the commencement of their employment, which identified all the shifts they were required to work, including any public holidays. However, the employer did not at any time, communicate with employees that they had the right under s114 of the FW Act to refuse (if the refusal was reasonable) to work on Christmas Day or public holidays generally.  Ultimately, the Court found that in effect, the employer had required (rather than requested) employees to work on 25 and 26 December 2019, which were public holidays. 

While the law has not changed, the consequences of the Full Court’s decision appears to be that employers must presume all employees will be absent from work on a public holiday.  From there, employers must then actively ask employees to work on a public holiday, rather than simply rostering or expecting them to work on a public holiday.

What does this mean for employers?

With the Christmas/New Year period fast approaching, employers may already be preparing rosters to cover the upcoming public holidays e.g. Christmas Day, Boxing Day, New Years Day etc.

Employers however need to ensure they request employees to work on the public holidays. If the employee accepts to work the public holiday shifts, the employer can issue the intended roster.

If the employee refuses to work on the public holiday shifts, the employer must:

• assess whether the request to work on the public holiday is reasonable, and if so;
• assess whether the employee’s refusal is unreasonable.

When deciding the above considerations, employers should consider:

• the nature of the workplace;
• the role and type of work the employee does;
• employee’s personal circumstances (including caring responsibilities);
• employment status (full-time, part-time or casual);
• an expectation that they might be asked to work on the public holiday;
• any overtime, penalty rates or other payment the employee might receive;
• the amount of notice provided; and
• any other relevant factor.

If you need any assistance in communicating any request to work public holidays with your workforce, the team at HR Law can assist.  To read the full case, access the link below. https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2023/2023fcafc0051