31 Mar HR LAW ALERT – IMPORTANT DECISION ON PUBLIC HOLIDAYS

On 28 March 2023, the Full Court of the Federal Court of Australia handed down its decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (“OS Case”).

The issue in this case surrounded the proper construction of section 114 of the Fair Work Act 2009 (Cth) (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 s 114 of the FW Act to refuse (if the refusal was reasonable) to work on 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.  Only where the employer’s request to work on the public holiday is reasonable, or where the employee’s refusal to work is unreasonable, will the employer then be able to require the employee to work.

While this case may be appealed to the High Court, until then, employers must comply with the Full Court’s current position on the requirement to work public holidays.

With the Easter period fast approaching, you may have already issued rosters requiring employees to work on public holidays e.g. Good Friday, Easter Sunday and Easter Monday. If this is the case and you are unaware of your obligations, contact HR Law to discuss on (07) 3211 3350.

To read the full case, access the link below.