In the matter Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd  FCAFC 51 (28 March 2023) – The full Federal Court held that BHP unreasonably required 85 of its production employees to work a standard 12.5 hour shift at a mine on December 25 and 26 of 2019. The FW Act permits an employer to request an employee to work on a public holiday, and this request must be in the form of a question where the employee has a choice as to whether they will agree or refuse to work. A request can be refused if it is not reasonable, or if the refusal is reasonable.
WHAT DOES THIS MEAN FOR YOU?
On the basis of the court’s view that an ‘inherent power imbalance that exists between employers and employees’, an employer is required to ensure employees understand that they can accept or refuse an allocation to work public holidays. A contractual provision which foreshadows employees may be asked to work on public holidays can be enabled where the request is reasonable, and a refusal would otherwise be unreasonable. This 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.
RELEVANT PROVISIONS OF THE FAIR WORK ACT
- Section 114(1) of the Fair Work Act 2009 (FW Act) 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
WHAT DO YOU NEED TO DO?
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 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.
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