Employees can now reasonably refuse to work public holidays – so what can employers do now?

The Full Federal Court has delivered a significant decision concerning an employee's entitlement in the National Employment Standards (NES) to be absent from work on public holidays. It has found that a company who required employees to work on two public holidays in 2019 (but did not request whether those employees were willing to work those days) contravened section 114 of the Fair Work Act 2009 (Cth) (FW Act) and the NES.

The effect of the Full Court's decision in CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51 is that employers who need employees to work on public holidays must first request whether their employees are willing to work on public holidays, rather than unilaterally requiring or rostering their employees to work, and to only require them to work in circumstances where the request is reasonable and any refusal is unreasonable.

Although the decision arose in the mining industry, it will have broader ramifications for all industries and employers with operations requiring employees to work on public holidays.

Mining doesn't stop on Christmas Day and Boxing Day

The case concerned approximately 85 employees of OS MCAP Pty Ltd, which provided mining services work in central Queensland, who were required to work on Christmas Day and Boxing Day in 2019. The relevant employees did not receive any additional remuneration for working on those days.

The company did not make requests of its employees to find out whether they were willing to work on the public holidays – rather, there was an assumption that those employees rostered to work on those days would work unless leave was otherwise granted. The company also did not at any time communicate with employees that they had a right under the FW Act, or otherwise, to refuse (if the refusal was reasonable) to work on Christmas Day and Boxing Day or public holidays generally.

The CFMMEU argued that, by imposing a requirement that the relevant employees work on the public holidays, the company contravened the NES and the FW Act.

What public holidays protection does the NES provide?

The FW Act affords employees the protection to be absent from work on a public holiday. However, it also provides the following exceptions to that protection:

• an employer may "request" an employee to work on a public holiday if the request is reasonable; and
• an employee may refuse the request if the request is unreasonable or if the refusal to work is reasonable.

There are several factors that must be considered when determining if a request, or refusal of a request, to work on a public holiday is reasonable. These include:

• the nature of the employer's workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
• the employee's personal circumstances, including family responsibilities;
• whether the employee could reasonably expect that the employer might request work on the public holiday;
• whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
• the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
• the amount of notice in advance of the public holiday given by the employer when making the request;
• in relation to the refusal of a request – the amount of notice in advance of the public holiday given by the employee when refusing the request; and
• any other relevant matter.

If an employer doesn't comply with these requirements, the consequences are significant and include liability for pecuniary penalties for contravening the NES.

Employees must be left with a choice

On appeal, the Full Court overturned the primary judge's decision and held that:

"a “request” …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." [emphasis added]

It is clear that the starting position is that an employee is entitled to be absent from their employment for a day or part day that is a public holiday. This protection cannot be displaced, regardless of contractual or enterprise agreement obligations.

Employees may be absent from work on a public holiday unless an exception applies:

• an employer has requested the employee to work and the request is reasonable; or
• the employee's refusal is not reasonable.

The provision is intended to confront the inherent power imbalance that exists between employers and employees, as employees will often feel compelled, and not understand, that they may refuse a unreasonable request, or if their own refusal is reasonable. The requirement that there be a “request” –rather than a unilateral command – prompts the capacity for discussion, negotiation and a refusal.

An employer can ultimately require employees to work on public holidays who are involved in critical services or where it is desirable (although “not critical”) to remain open on public holidays if the employer has satisfied its obligations under the NES.

An employer can have a roster which includes public holidays. All that is required is that an employer ensures that employees understand either that:

• the roster is in draft requesting those employees who have been allocated to the public holiday work that they indicate whether they accept or refuse that allocation, or
• a request is made before the roster is finalised.

Similarly, a contract may contain a provision foreshadowing that the employees may be asked to work on public holidays and may be required to do so where the request is reasonable and a refusal unreasonable.