Employers are not permitted to automatically roster employees on public holidays as a result of a landmark ruling. In March this year the Federal Court of Australia in the decision of Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd  FCAFC 51 found that an employer must ask workers if they want to work public holidays. The full bench of the Federal Court held that Operation Services (“OS”) had breached the Fair Work Act 2009 (“the Act”) by forcing miners to work on Christmas Day and Boxing Day.
Section 114(1) of the Act states that “An employee is entitled to be absent from his or her employment on a day or part day that is a public holiday in the place where the employee is based for work purposes”. It further states that “An employer may request an employee to work on a public holiday if the request is reasonable. If the employer requests an employee to work on a public holiday, the employee may refuse the request if the request is not reasonable or the refusal is reasonable”.
In the decision, the CFMEU argued that there was an expectation for employees to work Christmas Day and Boxing Day in 2019 as there was no reasonable request as there was “no request” at all and employees were simply rostered on if they had not applied for leave over the Christmas period.
The CFMEU was successful in the appeal in that the argument that OS (the labour-hire arm of BHP) had contravened the Act as rostering the employees did not allow the employees to agree to or refuse to work on the public holiday. It was observed that a request leaves the employees with a choice as to whether or not they wished to work the day as opposed to a requirement. The Court was clear however in saying that an employer could still require an employee to work on a public holiday if the employee’s refusal was unreasonable given the nature of work therefore essential services can still roster employees on provided that the employees are aware they have the option to not work the day on reasonable grounds.
If you would like specific advice concerning this case and its application to your business please do not hesitate to call us.