1 June 2023
A recent court ruling has clarified the requirements for employers when it comes to asking employees to work on public holidays.
Businesses must be aware that a formal request must be put to the employees who are rostered to work on public holidays, with reasonable time to respond, regardless of their contract terms and rostering.
The Full Court of the Federal Court of Australia has clarified an employer’s obligations when requiring an employee to work on a public holiday.
The matter of CFMEU v OS MCAP Pty Ltd raised the question of whether the provision of a roster meets the requirement of issuing a “request” for employees to work per section 114 of the Fair Work Act 2009 (Cth) (“the Act”). In this case, all employees had received:
The Full Court ruled, that a reasonable “request” must provide the employees with an opportunity to accept or reasonably refuse. It is required to be put forth as a proposition to the employee in the form of a question for discussion rather than a unilateral command.
In this instance, the assumption that employees rostered to work on public holidays were required to do so unless a leave application was submitted, did not meet the standard of a request under section 114 of the Act.
Requests to work on public holidays must be provided with adequate time for the employee to consider any reasonable refusal. Reasonableness under subsection 114(4) of the Act, takes into such factors as the:
In summary, businesses must make a formal request to employees who are rostered to work on public holidays, and provide them with reasonable time to respond, regardless of their contract terms and rostering.
Disclaimer: This summary is a guide only and is not legal advice. For further information, call ECA Legal on (08) 6241 6129 or email email@example.com.