In the matter of Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd  FCAFC 51, the Full Court of the Federal Court has ruled that the Fair Work Act requires employers to ‘request’ employees to work on public holidays, instead of simply rostering them on.
The employer, OS MCAP Pty Ltd, employed mine workers to provide production services on mine sites, including the Daunia Mine in Central Queensland.
For OS MCAP to meet the contractual targets set by the owner of Daunia, it was required to provide production services, 24 hours per day, 365 days per year. To meet these targets, no more than 7 of OS MCAP’s employees could be absent on one shift.
The employees’ employment contracts set out that they could be required to work on public holidays without additional pay because their base rates included such payments. They were provided with a roster when they first commenced employment which identified all shifts, including the public holidays, that they were required to work.
In the lead up to Christmas, 92 employees had applied for leave over the break. Due to the above requirements, OS MCAP could not approve all of the leave requests. As such, OS MCAP held a ballot to select 7 employees at random who would have their leave requests approved, while the other 85 employees were required to work over the Christmas period as rostered.
The CFMEU lodged proceedings against OS MCAP alleging that it had breached the National Employment Standards (NES) by requiring the employees to work on public holidays. Particularly, the CFMEU alleged that OS MCAP had breached section 114 of the Fair Work Act 2009 (Act), which amounted to a contravention of the NES.
In summary, section 114:
- entitles an employee to be absent from work on a public holiday;
- permits an employer to request an employee to work on a public holiday if that request is reasonable; and
- permits an employee to refuse such a request if:
- the request is not reasonable; or
- the refusal is reasonable.
The CFMEU argued that OS MCAP, by rostering the employees to work on the public holidays, had not made a ‘request’ that they work on those public holidays, but imposed a requirement. OS MCAP argued that the term ‘request’ in section 114 also included a ‘requirement’, and that this was contained in their employment contracts.
The Full Court considered the meaning of the word ‘request’ in the context that section 114(1) entitles an employee to be absent from work on a public holiday on full pay. It found that a ‘request’ leaves the employee with a ‘choice as to whether or not to do the thing’, and that this is distinct from a requirement, which does not provide a choice. It found that OS MCAP imposed a requirement that could not be refused, and this could not constitute a ‘request’ under section 114 of the Act.
However, the Full Court noted that there is an exception to this requirement where the employer makes a reasonable request, and the employee’s refusal to accept the request is not reasonable. The Full Court noted that ‘reasonableness’ will be determined on a case by case basis.
Unless this decision is reversed by the High Court, employers need to ensure that they request that employees work on public holidays, rather than simply rostering them on and/or relying on such requirements set out in their employment contracts.
Employers should also review their policies and procedures:
- to ensure that they are complying with section 114 of the Act (contravening this section can attract civil penalties);
- to set that requests to work on public holidays are made well in advance of the relevant public holiday; and
- to set out a process for considering whether:
- an employee’s refusal to a request is reasonable; and
- the employer has grounds for insisting an employee work on a public holiday if they refuse.
If you require assistance or advice on issues regarding making requests for employees to work on public holidays, or any other employment matter, please contact:
M: 0416 794 061
T: (03) 6235 5153
T: (03) 6235 5184
Published: 19 May 2023