A full bench of the Federal Court has ruled that requiring on-hire staff to work on public holidays without first making a "request" is unlawful. In a case brought by the CFMMEU against OS MCAP Pty Ltd, BHP's in-house labor hire company, it was found that OS breached section 114 of the Fair Work Act when it required approximately 85 production employees to work a standard 12.5-hour shift at BM Alliance Coal Operations' Daunia Mine in central Queensland on Christmas Day and Boxing Day in 2019. The Act entitles employees to be absent on a public holiday, but an employer can request an employee to work on a public holiday if the request is reasonable, and an employee can refuse that request if it is not reasonable. OS argued that the word "request" could also mean "requirement" and therefore did not breach the Act. However, the Full Court found that "request" implies choice and allows for discussion and negotiation. The court also rejected OS's argument that it risked breaching its contractual obligations if employees did not work on public holidays. The matter has been remitted to determine remedy and penalty.
Employers should review their employment agreements and current procedures for rostering on public holidays. An employer can request employees to work on a public holiday but the request has to be reasonable. An employee may refuse a request to work if they have reasonable grounds.
The following needs to be taken into account when deciding if a request is reasonable:
- the nature of the workplace
- the role and type of work of the employee does
- employee’s personal circumstances (including caring responsibilities)
- employment status (full-time, part-time or casual)
- an expectation that they might be asked to work on the public holiday
- any overtime, penalty rates or other payment the employee might receive
- the amount of notice provided
- any other relevant factor.