We recently communicated an important Federal Court decision, CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51, which impacted on how employers can handle rostering employees on public holidays.
Employers must now “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 applied immediately and will impact employers ahead of the ANZAC Day public holiday on Tuesday 25 April 2023.
The Fair Work Act provides 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 employers request if the request as 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.
What do employers need to do?
With ANZAC Day only days away, employers who are intending to operate on that day need to act with urgency. If they haven’t already, Employers need to communicate with staff and request that they work the public holidays. If rosters have already been issued without a prior request, 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 new requirement 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.
