A decision from the Federal Court on 28 March 2023 has overturned the conventional approach to rostering employees on public holidays. The impact of the decision on employers rostering employees to work public holidays is immediate and significant.
As a result of the decision, employers must “request” employees work a public holiday before they are required to work the holiday (including by way of a roster). A failure to request that the public holiday be worked (in advance of any direction/requirement to work the holiday) will render the working of the holiday unlawful and in breach of the Fair Work Act.
The principles apply immediately, which means they will affect work over the Easter long weekend.
In CFMMEU v OS MCAP Pty Ltd
 FCAFC 51, a Full Court of the Federal Court considered a roster issued by OS MCAP that required 85 employees to work Christmas Day and Boxing Day. The employees worked at a mine that operates 24 hours per day and 365 days per year.
The employees were engaged to work pursuant to a rotating roster of 7 days work on, 7 days work off. A number of employees were rostered to work the Christmas and Boxing Day holidays. As the holidays approached, OS MCAP communicated with employees that if any had special circumstances, they could request to have the public holidays off. Of these requests, 9 were granted and the remaining 85 employees worked the public holiday.
Relevant provisions of the Fair Work Act
Section 114(1) of the Fair Work Act 2009
) entitles employees to be absent from work on a public holiday.
Section 114(2) next provides that an employer may request
an employee to work a public holiday, if the request is reasonable.
Section 114(3) next provides that an employee may refuse the employer’s request, if the request was not reasonable or if the refusal is reasonable.
Section 114(4) finally then sets out a number of considerations that should be considered to determine whether a request/refusal is reasonable.
Findings of the Full Court
The Full Court unsurprisingly found that s114(1) of the Fair Work Act
entitles employees to be absent from work on a public holiday.
However, the Court further noted that this entitlement can only be extinguished where:
- an employer has requested that an employee work the public holiday; and
- the employee agrees to work the holiday; or
- alternatively, the employee refuses but the refusal is unreasonable (triggering a right for the employer to direct the working of the public holiday).
In either case, the Full Court emphasised that the working of a public holiday can only occur lawfully if the employer has made a request for the holiday to be worked.
In this case (as is often the case in shift work environments), no request was made. OS MCAP simply rostered its employees to work the public holidays.
OS MCAP contended that implied in its rostering of the employees was an ability for the employees to refuse to work the day, should they have reasonable grounds.
However, the Full Court rejected this argument. The Full Court held that there is a difference between requiring
an employee to work a public holiday (as OS MCAP did by rostering its employees on Christmas Day and Boxing Day) and requesting employees to work a public holiday.
As no request was made, the Full Court held that the FW Act had been breached and referred the matter back to the primary judge to determine the appropriate remedy and penalty.
Implications for employers
The effect of the judgment is that no employer can rely upon traditional and ordinary rostering in order to have employees work public holidays. Such automated rostering processes do not generally incorporate a request
for employees to work, before being expected/required to do so.
Instead, employers will need to introduce some mechanism whereby a request is made to work a public holiday, before any direction to work is issued.
The Federal Court implied that the request could be inserted into the rostering process somehow, through the use of special language:
 The Court does not accept the submission of OS that the Union’s interpretation would be inherently unworkable because such an interpretation would mean that an employer could not ever have a roster which included working hours on Christmas holidays or ever contain a contractual requirement. An employer is able to have a roster which includes public holidays. All that is required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised. Similarly, a contract may contain a provision foreshadowing that the employees may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable.
Decision affects Easter public holidays
Employers relying upon rostering for the upcoming Easter holidays will need to ensure communications are issued to employees confirming that any roster to work is a request to work that can be refused by the employees. The communication should also indicate that the roster is, in effect, in draft until any responses to the request have been received.
The employers will also need to have some process communicated and implemented for considering and responding to any refusals, once they become known.
A number of ABLA clients will have rostering arrangements unique to their own business and we encourage clients to contact us directly for advice regarding their own specific circumstances. Please get in touch with our workplace and employment team at firstname.lastname@example.org