South Australian Business News

IMPORTANT EASTER ALERT: Rostering Employees to work Public Holidays

Kathryn Rees
Tuesday, April 4th 2023

A recent Federal Court decision, CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51, will impact on how employers handle rostering employees on public holidays. On 28 March 2023, the Full Court of the Federal Court determined that employers must request” employees to work on public holidays before they are actually required to work the day. This means that an employer cannot roster an employee to work a public holiday before they have made the requests to the employee. 

If an employer does not make the request ahead of time and the employee works the public holiday, it will mean that the working of that holiday was unlawful and a breach of the Fair Work Act.

This decision applies immediately and has the potential to cause problems for employers who have employees rostered to work over the upcoming Easter Long Weekend. 

The Fair Work Act states that employees are entitled to be absent from work on a public holiday, however, an employer may request an employee to work a public holiday if the request is reasonable. The Act provides that an employee may refuse an employer’s request if the request is not reasonable or if the refusal was reasonable. 

The Full Court determined in the decision that an employee’s entitlement to be absent from work is only extinguished where the employer has requested that an employee work the public holiday and either the employee agrees to work or the employee has refused but the refusal is unreasonable. Regardless, the employer must make the request to the employee in order for the employee to be able to lawfully work on the public holiday.

Historically, employers have used rostering systems to provide employees with advance notice that they are required to work on a public holiday. Whilst a roster is not a request, it generally would have allowed an employee to come forward and refuse to work the public holiday if reasonable. The impacts of this decision are that employers can no longer rely on this system and instead will need to expressly request employees to work on public holidays before rostering them to work.

What do employers need to do?

With the Easter Long Weekend only days away, employers who are operating need to act with urgency. Employers need to immediately communicate with staff and request they work the public holidays. If rosters have already been issued, employers should immediately communicate with employees advising that the roster is a request and can be refused by employees and that a response is required before the roster can be finalised. 

For future public holidays, employers will need to create a system whereby requests to work public holidays, and the associated responses from employees are generated before any rostering takes place. 

Of note, the decision did touch on employment contracts containing specific wording around an employer’s expectation to work public holidays, however, the Federal Court made it clear that a request will still be required. 

How we can help?

Our team of Industrial Relations specialists are on hand to help you navigate through this decision this week and we can also provide you with assistance in creating a system for managing this in the future. 

Get in touch with our Business Advice Hotline today on 8300 0000 (select option 1) and read more about our workplace relations team on our website.

Author

Kathryn Rees

Senior Consultant Workplace Relations And Injury Management
Recent Articles
28 Mar 2024
China drops tariff on Australian Wine
26 Mar 2024
It's time for payroll tax reform
26 Mar 2024
Unley on the lookout for young entrepreneurs
26 Mar 2024
Payroll tax puts the breaks on local business
26 Mar 2024
Are your casual staff really casual?
26 Mar 2024
William Buck SA Announces New Managing Director