Rostering and contracting employees to work during a public holiday is quite usual in many industries such as Mining, Aged Care, Manufacturing and Construction
The Federal Court has recently declared that the current system of rostering or contracting employees to work on public holidays needs a serious rethink for Employers and Human Resources.
Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd  FCAFC 51 (28 March 2023)
In the matter of Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd  FCAFC 51 (28 March 2023) on Christmas Day and Boxing Day in 2019, approximately 85 production employees of OS MCAP Pty Ltd, BHP’s in-house labour hire company, worked a standard 12.5-hour shift at BM Alliance Coal Operations’ (BMA) Daunia Mine in Central Queensland.
The CFMMEU argued that in requiring the employees to work on a public holiday, OS MCAP Pty Ltd breached one of the National Employment Standards (NES) that being section 114 of the Fair Work Act 2009 (Cth).
That is, an employee is entitled to be absent from work during a public holiday.
In Australia, public holidays are either gazetted by each state or territory, or observed nationally.
The usual nationally gazetted public holidays are New Year’s Day, Australia Day, Good Friday, Easter Monday, Anzac Day, Christmas Day, Boxing Day. There are of course others.
Under section 114 of the Fair Work Act 2009 (Cth) an Employer can reasonably request an employee to work a public holiday. An employee can refuse that request if the request is not reasonable, or if their refusal is reasonable
Requests for Employees to work during Public Holidays
In the original decision the Employer was able to argue that the operational needs of the business to provide workers on the mine site 365 days a year (which was contracted with BMA) led to the decision that the requirement was reasonable.
On appeal however, the union argued it would be a breach to require an employee to work on a public holiday where the employer had made “no reasonable request”.
The Full Bench of the Federal Court found that a request provides choice whether to accept or reject the allocation on the roster to work on a public holiday.
Namely, this prompts the capacity for discussion, negotiation and if wanted a refusal. The Full Bench were clear that the Employer must even in operational circumstances to consult with the employee whether they can work the public holiday.
Breach of National Employment Standards
The Full Bench of the Federal Court found there was a breach of the NES.
As a result of this key decision, the rostering process will also have to factor in the additional time it takes to make a request and receive a reply for public holidays.
Documentation should be in place to evidence this request and of course the answer from the employee as to whether they are willing to work the public holidays or refuse the engagement.
Civil penalties can range up to $82,500 for a company and up to $16,500 for an individual involved in the breach.
About the Author
Jonathan Mamaril leads a team of handpicked experts in the area of employment law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability. With a core value of helping first and providing practical advice, Jonathan is a sought after advisor to a number of Employers and as a speaker for forums and seminars where his expertise is invaluable as a leader in this area as a lawyer for employers.