Happy holidays: High Court move means employers must request employees to work public holidays, or risk breaching NES

By Karl Rozenbergs, Piers Mitchem and Holly Gretton

Just in time for the holiday season, a recent move by the High Court^[1] has made it crystal clear that employers who want their employees to work on public holidays must first request that they work on those days (and only require them to work if the request is reasonable, and the employees don’t have a reasonable basis for refusing it).

The development will have wide-ranging implications for many businesses, particularly those with 24/7 operations or whose operations otherwise continue throughout holiday periods.

In this article, we take a look at the background to this case and offer some key takeaways for employers to ensure compliance.

Background

The matter began last year, when the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) launched Federal Court proceedings against labour hire company OS MCAP Pty Ltd (OS), which had unilaterally rostered its workers at the Daunia mine in central Queensland to work on Christmas Day and Boxing Day instead of first asking them to do so.

The CFMMEU alleged that by doing so, OS contravened section 114 of the Fair Work Act 2009 (Cth) (FWA), which requires (among other things) that:

• an employee is entitled to be absent from work on a public holiday;
• however, an employer can request an employee to work on a public holiday if the request is reasonable; and
• if an employer makes such a request (and the request is reasonable), then the employee may only refuse it on reasonable grounds.^[2]

The key issue in contention was whether unilaterally rostering employees to work on a public holiday could nevertheless still constitute a ‘request’ to work those days (and, in doing so, meet the above requirements).

At first instance the Court found in favour of OS, holding that OS had not contravened the above requirements, because it accepted that unilaterally rostering employees to work on Christmas Day and Boxing Day did constitute a ‘request’. Specifically, the Court held that section 114:

‘is not intended to apply only to an employer’s “request” in the sense of a question leaving the employee with a choice as to whether or not to work on the public holiday. The provision is also intended to apply a “requirement” by an employer which indicates there is no choice for the employee but to work on a public holiday.’

The Court also held that unilaterally rostering employees to work on Christmas Day and Boxing Day was ‘reasonable’, given the need to operate shifts on those public holidays.^[3] 

The CFMMEU then appealed to the Full Court of the Federal Court, arguing among other things that OS could only have complied with section 114 if it had first made a reasonable request that its employees work on Christmas Day and Boxing Day, and there was no evidence that it had done so – instead, it had simply rostered the workers on with the expectation they would work.

The Full Court agreed, finding that by allocating public holiday shifts to the employees, without first asking them whether they were willing to work on those days, OS had contravened section 114 of the FWA.^[4]

On 22 November 2023, the High Court effectively confirmed this position by refusing OS leave to appeal.

Key takeaways and recommendations

The Full Court’s decision – and the High Court’s refusal to disturb it – means employers will run a serious risk of contravening section 114 of the FWA if they unilaterally roster their employees to work on public holidays.

Affected employers should therefore review their rostering practices (including as contained in their contracts, policies and any enterprise agreements), and ensure that they can demonstrate that:

• employees are asked if they are willing to work on a public holiday before being rostered on; and
• if the employee refuses that request, they are only required to work if the request is reasonable (and their refusal is unreasonable).

To achieve this, employers may wish to consider implementing practices that allow them to:

• facilitate and demonstrate they have made a request to employees;
• demonstrate that the request is reasonable;
• allow employees to have a choice and to confirm their choice; and
• have employees confirm their choice in writing (including, where they refuse, their reasons for doing so).

Whether an employer’s request is ‘reasonable’, or an employee’s refusal is ‘unreasonable’, must be determined by taking into account matters including (among other things) the nature of the employer’s business and its operational requirements; the employee’s personal circumstances (including family responsibilities); whether the employee will be compensated for working on the public holiday (eg by receiving overtime, penalty rates or a salary that has been calculated to include public holiday work); and the amount of notice given to the employee when making the request.^[5]

This article was written with the assistance of Alex Manning, Law Graduate.

[1] OS MCAP Pty Ltd ACN 626 224 655 v Construction, Forestry, Maritime, Mining and Energy Union, B24/2023.
[2] See FWA section 114(1), (2) and (3).
[3] Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd (No 2) [2022] FCA 132.
[4] Construction, Forestry, Maritime, Mining and Energy Union v OS MSCAP Pty Ltd [2023] FCAFC 51.
[5] See FWA section 114(4).