5 steps employers should take in arranging public holiday work

With the Easter holidays almost upon us, it is important for employers to plan for how they will roster employees to work on the relevant public holidays. A recent case indicates that it is unlawful for employers to simply roster employees on, and ‘require’ them to work without an initial ‘request’ and consideration of the circumstances to determine if an employee’s refusal is reasonable. 

This article will discuss how ‘requests’ for employees to work on public holidays should be managed in light of the decision of the Full Court of the Federal Court of Australia in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (OS MCAP Decision). Special leave to appeal by the employer was refused by the High Court of Australia late last year. 

Whilst this case was in relation to section 114 of the Fair Work Act 2009, we note that section 116 the Industrial Relations Act 2016 (Qld) (IR Act) is exactly the same, so the case will be also relevant to the Queensland Public Service and Local Government. 

Working on a public holiday – the legislation

Importantly, the default position is that employees are entitled to be absent on a public holiday (section 114 of the Fair Work Act 2009 (Cth) (FW Act) and section 116 of the IR Act).  

However an employer may request an employee work on a public holiday if the request is reasonable; but the employee may then refuse the request if:

• the request is not reasonable; or
• the refusal is reasonable. 

An employer needs to take into account the following factors when considering the reasonableness of a request or a refusal:

• the nature of the operational requirements of the workplace and the nature of the work;
• the employee’s personal circumstances, including family responsibilities;
• whether the employee reasonably expects that the employer might request work on the public holiday;
• the type of employment (full time, part time, casual or shiftwork);
• the notice given by the employer when making a request;
• if refused by the employee - the notice given by the employee to the employer; and 
• any other relevant matter¹. 

Previous practice of employers for public holiday work

Prior to the OS MCAP Decision, common practice of employers in relation to public holiday work was to:  

• inform employees, usually as a condition of their employment, that they were required to work on public holidays as rostered; and
• roster employees to work on public holidays, with no clear option to refuse other than applying for leave.

The OS MCAP Decision has turned this practice on its head.

Facts in the OS MCAP Decision 

OS MCAP Pty Ltd entered into a contract to provide its client with production services on a 24/7 basis. In relation to work on public holidays, OS MCAP had:

• engaged employees under a standard form contract, which foreshadowed that employees “may” be required to work on public holidays and receive no additional remuneration; 
• provided employees with a laminated card containing their shift schedule, encompassing both seven days on and seven days off rotations, indicating the public holidays they would be obliged to work; 
• provided an orientation session for new hires featuring a PowerPoint presentation stating that the employees were "scheduled to work 24/7, 365 days a year," which included all public holidays; 
• informed employees in a meeting that they would be assigned to work on Christmas Day and Boxing Day, and that no further requests were being accepted, unless already approved for special circumstances; and
• approved certain employees’ public holiday leave applications through a random selection process of names, with the assurance that in future years, they would call for expressions of interest from employees to not work on public holidays. 

It was assumed that the employees would work on public holidays as rostered, unless leave was approved. 

OS MCAP Findings 

The Full Federal Court considered what an employer must do to make a request to work for the purposes of section 114(2) of the FW Act, and whether OS MCAP had fulfilled these requirements. 

The Court decided that such a ‘request’ must be 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’. 

By ‘requiring’ employees to work on a public holiday (instead of giving a choice), OS MCAP was found to have breached section 114 of the FW Act regarding public holiday work. The Full Federal Court said that section 114 was intended to level up the inherent power imbalance between employers and employees in relation to work on public holidays, and ensure that employees could reasonably refuse to work public holidays in certain circumstances.

Nevertheless, the Full Court accepted that it is still possible, according to section 114 of the FW Act, to effectively ‘require’ an employee to work on a public holiday (for example, in safety critical industries or even where it is a preferred business model with 24/7 work). The Full Court held that if an employer presents a reasonable request for an employee to work on a public holiday, and this request allows for negotiation and discussion, the employee is obligated to work unless they hold a reasonable justification for refusal. 

Steps for employers to ensure compliance in relation to public holidays 

Employers should ensure that they request employees to work on a public holiday in a way that gives a choice to refuse.  

Under the FW Act, an employer, and those individuals involved in the contravention, who does not comply with this section risks significant civil penalties of up to $469,500 per contravention for companies who are not small businesses (recently increased, with small businesses to remain at up to $93,900) and $18,780 per contravention for an individual. ²

There are a number of steps we recommend an employer takes to show compliance with the legislation where employees are required to work on public holidays: 

1. Most importantly – make a ‘request’ and consider the employee’s response. Employers should expressly ‘request’ that employees work upcoming public holidays and provide employees with as much notice as possible of those public holidays. 

This could be done by sending the roster to employees with a note saying that the employee is requested to work the public holidays in the relevant roster, and that the employee should inform the employer of any reason why they might refuse to work on those days (in accordance with any policy or guide containing timelines for such correspondence – see below). Rosters could be issued in ‘draft’ pending any reasonable refusals.  

Depending on the rostering arrangement, the request could be made – for example – in the month leading up to the public holiday, quarterly, or every six months. Either way, the request should be made as soon as possible (given that this is a factor the FWC must take into account in determining whether the request was reasonable). In the recent case of Australian Federated Union of Locomotive Employees v Aurizon Operations Ltd (Aurizon Operations Case),³ six weeks was considered reasonable notice.

The list of what should be considered in considering an employee’s refusal is detailed above.⁴ In the Aurizon Operations Case, an employee refusal based on briefly outlined religious/family reasons (Christmas having ‘important family and religious days’) did not outweigh the operational/supply chain needs of the 24/7 business environment, noting that the employee was well remunerated for public holiday work and provided with sufficient notice.

2. Consider implementing a policy/guide/procedure regarding public holiday work. The document should include:  

• the needs of the workplace (e.g. 7-day shift work to meet the needs of clients); 
• how and when employees should (preferably) inform employers of their “refusal” to work the public holiday (so the employer can make alternative arrangements if necessary); 
• what information and supporting evidence an employee can provide to support their refusal (noting that the FW Act does not contain any requirement that an employee provide such evidence);  
• the factors set out in section 114(4) of the FW Act that the employer will apply in determining whether any refusal to work the request is reasonable; 
• details of how employees will be remunerated for working a public holiday (if this information is not set out elsewhere, e.g. in the employee’s contract of employment or enterprise agreement – see below Step 4), and any impact on annual leave accruals (see below Step 5).  

3. Review employment contracts: Employment contracts should include that the employee agrees: 

• they may (or will) be requested to work on public holidays from time to time due to business needs; and 
• (if the employee works under a roster) if provided with a roster which includes work on a public holiday, the roster is a ‘request’ to work on those particular public holidays, which an employee may reasonably refuse depending on the circumstances. 

The contract should also contain a provision specifically dealing with pay if an employee works on a public holiday and any impact on annual leave accrual (see below Steps 4 and 5).  

Any ‘blanket’ request to work public holidays in an employment contract are unlikely to meet the requirements of the legislation.

4. Revisit how salaries are calculated: Annual salaries, or flat-rate (also called aggregate) shiftwork allowances in many existing enterprise agreements and employment contracts are calculated to account for work on public holidays. While this may weigh in favour of a request being ‘reasonable’, it will not be determinative. 

As such, employers should review how salaries are calculated in employment contracts and enterprise agreements for work on public holidays and assess whether changes should be made (either in the short or long term when agreements/contracts are updated or renewed). Those calculations could: 

• include a component for a stated number of public holidays being worked per annum. Consider what, if anything, will happen if the employee does not work the stated number of public holidays; or
• pay an additional amount for working on a public holiday.  This may specifically discourage employees from refusing to work. 

Any clauses dealing with work on public holidays in employment agreements or enterprise agreements should reflect the terms of the legislation in relation to requests to work. The legislative provisions will always take precedence over any contractual or enterprise agreement term.

5. Inform employees of any impact on annual leave accrual: In order to be a shiftworker and receive an additional week of annual leave, employees are required to work a certain amount of public holidays (detailed under the relevant award, enterprise agreement or the FW Act/IR Act in relation to award-free employees). This may impact on an employee’s decision to refuse public holiday work, so we recommend they are informed up front of this impact.   

Our Workplace and Employment team at HopgoodGanim Lawyers are well positioned to provide legal expertise in relation to managing general protections risks and claims and across wider employment, industrial relations and workplace health and safety matters. 

Our team can advise individuals and businesses about compliance with regulation, optimising workforce engagement and outcomes, and managing and containing exposure to possible disputes or litigation. Please contact us for more information. 

¹ Section 114(4) FW Act.
² The penalties in relation to the OS MCAP Decision are yet to be determined.
³ [2023] FWC 3473.
⁴ Sections 114(4) FW Act and 116(4) IR Act.