Public holiday work – the important difference between requesting and requiring employees to work
Background
The Full Court of the Federal Court of Australia has recently handed down a decision relating to public holiday work and the requesting of employees to work on these days. The findings clarify the procedure that employers must follow if they want employees to work on public holidays and serve as a reminder that it is an employee’s legislative entitlement to be absent on a public holiday unless the proper procedure is followed.
The Facts
OS MCAP Pty Ltd (OS) employs production employees to operate mobile machinery for its mining clients, which notably includes a number of BHP operations throughout Australia.
On Christmas Day and Boxing Day in 2019, approximately 85 OS employees worked standard 12.5 hour mining shifts, however did not receive any additional remuneration for working those days. These employees were engaged pursuant to a standard form employment contract which stated that they “may be required to work on public holidays and payment for this expectation has been incorporated into [your] existing remuneration.” However, when employees first commenced they were provided with a roster on a laminated card which identified all the shifts including public holidays they would be required to work according to a 7 days or nights on, 7 off roster.
In the previous months, following a number of employees putting in leave applications for Christmas Day and Boxing Day, OS informed employees that it could only accommodate six employees for each roster panel being absent from work on Christmas Day and Boxing Day. Employees were shown a Powerpoint presentation which stated the following:
‘For Christmas and Boxing Day this year, 6 people will be allowed to be away per crew.
As some employees already have approval to be absent on Christmas and Boxing day, there are 2 remaining spots left in B crew and 5 remaining spots left in D Crew.
To determine who is allowed to be away per crew, names will be pulled out in front of crew by 24/09/19. We believe this is the fairest approach.
Expressions of interest are to be submitted to your supervisor by 20/09/19.
In future years, people will be chosen by expressions of interest and picked in front of the crew, around July.
People will not be able to have XMAS off again for 2 yrs.
If you have any concerns, please raise these with your supervisor.’
Shortly, following the random picking of employees who would be permitted to take leave on Christmas and Boxing Day, OS was able to increase the number of employees who could take leave on these days due to the expectation of wet weather. Employees who had “special circumstances” such as family responsibilities towards sick or elderly relatives over the festive season were invited to make appropriate leave requests. Consequently, nine more employees were granted leave for these particular public holidays.
However, employees who made requests without providing reasons for wanting leave or simply stated that they wanted to be home with their families were not granted leave. Similarly, one particular employee, Mr Toomey, did not put in a leave request for these public holidays despite his mother recently becoming wheelchair-bound and experiencing her first Christmas without her spouse. Mr Toomey understood that requests for leave over Christmas and Boxing Day were not being accepted and so he decided not to submit a request.
The undisputed evidence was that OS never made a request of its employees asking them whether they would be willing to work on Christmas or Boxing Day, rather there was an assumption that those employees rostered to work on those days would work on those days, unless they applied for leave and it was granted according to the very limited circumstances. Further, it was never communicated to employees that they had a right under section 114 of the Fair Work Act 2009 (Cth) to reasonably refuse to work on public holidays. Section 114 was the focus of this decision and reads as follows:
‘(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.
(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.’
At the first instance decision in the Federal Court of Australia, the finding was in favour of OS that the requirement to work on Christmas and Boxing Day was reasonable for the purposes of section 114. As a result, the CFMMEU appealed this outcome on three grounds:
1) Whether the primary judge erred in determining that the exception under s 114(2) of the FW Act applies where the employer imposes a requirement on an employee to work on a public holiday rather than a request;
2) Whether the primary judge erred in determining that the CFMMEU bore the legal onus of establishing that the requirement for the employees to work on Christmas and Boxing Days 2019 was not reasonable;
3) Whether the primary judge erred in determining that OS’s requirement for its employees to work on Christmas and Boxing Days was reasonable for the purposes of s 114(2) of the FW Act.
Decision
The Full Court held that OS had contravened section 114(2) because it required employees to work on Christmas and Boxing Day rather than requesting employees to do so. There was no opportunity for employees to challenge or refuse the requirement to work and the assumption that employees would work on the relevant public holidays was unreasonable in breach of the procedure outlined by this section.
Reasoning
Ground 1 concerned the meaning of ‘request’ in section 114(2), which provides that employers may request an employee to work on a public holiday if the request is reasonable.
CFMMEU contended that section 114 confers an entitlement on employees not to work public holidays and this will be contravened where an employer requires an employee to work on a public holiday and has made no reasonable request. In other words, there cannot be a reasonable request where there is no request at all because an employer has imposed a requirement that employees work on a public holiday.
OS contended that the primary judge was correct in finding that a requirement to work a public holiday was technically the same as a request to work a public holiday. Therefore, such a requirement to work on a public holiday is able to constitute a reasonable request.
The Full Court’s reasoning in this case accepted the CFMMEU’s submissions. Examining the ordinary meaning of the words ‘request’ and ‘require’, these strengthen the CFMMEU’s positions as ‘request’ means to ask, whereas ‘require’ means to demand or make obligatory. The legislation intends that there is a choice for employees to work public holidays or not, so to liken a ‘requirement’ to a ‘request’ based on these meanings would not be consistent with this intention; if there was only a requirement, there would be nothing to allow a refusal.
Further, the Full Court agreed with the interpretation of the word ‘request’ in the decision of Shop, Distributive & Allied Employees Association v Woolworths Ltd [2012] FCA 540 where it was stated that the purpose of an employer being required to make a ‘request’ included to ‘leave room for negotiation and discussion’.
The Full Court also reiterated that the entitlement for employees to be absent on a public holiday is part of the National Employment Standards (NES) and cannot be disregarded or overridden by contractual provisions such as an employment contract.
Overall, a ‘requirement’ does not comprise a ‘request’ for the purposes of section 114(2), and OS accepted that it did not make a request in the ordinary sense. Therefore, section 114(3) did not come into play as there was no opportunity for employees to refuse and so OS was in breach of this section by requiring that the employees work on Christmas Day and Boxing Day.
Given this was the Full Court’s conclusion in relation to Ground 1 of the appeal, there was no need to consider the remaining grounds as these would only have arisen if the CFMMEU had failed on its first ground.
Key Takeaways
The consequence of this decision demonstrates the presumption that employees are entitled to be absent from work on public holidays. Employers must actively request employees to work on a public holiday, provided it is reasonable in the circumstances and avoid rostering employees on and expecting them to work without any consultation. This is of particular importance for industries like hospitality and retail which often conduct business on public holidays.
Nonetheless, employees do not have a free rite of passage to refuse without any explanation. An employee’s refusal is only limited to circumstances where the employer’s request to work on a public holiday is unreasonable, or the employee’s refusal is reasonable such as due to family responsibilities.
Every business will have its own unique circumstances when it comes to public holiday staffing and rostering so if you need advice in relation to compliance please contact:
Jim Babalis
Special Counsel
T 03 5225 5205
E jbabalis@ha.legal
Sonia McCabe
Senior Associate
T 03 5226 8558
E: smccabe@ha.legal
Matthew Synoradzki
Lawyer
T 03 5226 8542
E msynoradzki@ha.legal
