Public holidays for workers covered by the Federal industrial relation system are principally governed by the National Employment Standards (NES) contained in the Fair Work Act 2009.
This article summarises some key considerations for employers related to public holidays, including the recent case of CFMMEU v OS MCAP Pty Ltd.
Choice to Work on Public Holidays
Employees generally have the right to be absent from work on a public holiday and are entitled to receive payment for their usual hours of work on that day or part-day.
While the general rule is that employees can take a day off on public holidays, employers may make reasonable requests for employees to work on these days. An employee can refuse such a request if it is deemed unreasonable or if the refusal is reasonable.
It's important to note that modern awards and enterprise agreements may also include provisions that deal with public holiday entitlements. However, as we discuss later, employers cannot simply rely on an award or agreement to require their employees to work on public holidays.
Construction, Forestry, Maritime, Mining and Energy Union v
OS MCAP Pty Ltd [2023] FCAFC 51
CFMMEU v OS MCAP Pty Ltd clarified the position that employers are obligated to follow a formal procedure when requesting their employees work on a public holiday, and cannot simply rely on an award, agreement or contractual provisions to require employees to work.
In considering the nature of a 'request' under the Fair Work Act, the Court was of the view that:
"a "request" within the meaning of s 114(2), connotes its ordinary meaning, an employer may make a request of employees in the form of a question, leaving the employee with a choice as to whether he or she will agree or refuse to work on the public holiday. Ultimately, after discussion or negotiation, the employer may require an employee to work on a public holiday if the request is reasonable and the employee's refusal is unreasonable."
The court confirmed that employers must initiate a formal request to their employees, seeking their consent to work. This request must allow employees the opportunity to either accept or decline the request and employers should not proceed with rostering arrangements until they have secured the employee's consent or otherwise appropriately dealt with a refusal.
A failure to make a genuine request to employees to work may result in penalties under the Fair Work Act.
Factors in Determining Reasonableness
Several factors are considered when determining the reasonableness of a request or refusal to work on a public holiday, including:
- The nature of the employer's workplace and the employee's role. Many industries such as health and retail rely on employees working on public holidays.
- Personal circumstances, such as family responsibilities.
- Expectations of work on public holidays, including compensation.
- Employment type (full-time, part-time, casual or shiftwork).
- Notice provided by the employer / employee regarding the request or refusal.
Different types of employees and employers may have varying expectations regarding working on public holidays, and in different industries and roles it may be more common for employees to work public holidays.
Planning and Communication
Employers are advised to:
- Plan rostering arrangements for public holidays well in advance;
- Give employees plenty of notice if requesting they work; and
- Ensure that a genuine 'request' is made to employees.
Employers should also be aware of their obligations under any award or workplace agreement as they relate to public holidays (which may require penalty rates to be paid or have a procedure of allowing substitute days).
Public holiday entitlements are an integral part of the NES, providing employees with the right to take time off and refuse work on these days. Employers should consider the relevant factors, including those discussed above, and communicate effectively to ensure compliance with the Fair Work Act as it relates to public holiday work arrangements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
