Do you understand your employees' public holiday entitlements?

The High Court yesterday refused to grant BHP special leave to challenge a significant full Federal Court decision regarding employees' entitlements to be absent from work on public holidays.

The full Federal Court's decision related to employees working in the mining industry, whose employer required them to work on Christmas Day and Boxing Day in 2019. The Full Court found that by requiring its employees to work, and not requesting whether those employees were willing to work, the employer had contravened the National Employment Standards.

BHP sought special leave to challenge the full Federal Court's decision, which has now been refused.

Accordingly, with the full Federal Court decision standing as the current law on this issue, it is critical for employers to understand their obligations as we approach the 2023 Christmas season and to review existing and future requirements for employees to work on public holidays (including in rosters, contracts and enterprise agreements) to ensure they are compliant.

Employers should:

1. not unilaterally roster employees to work on public holidays, and instead make a request regarding whether employees are willing to work on those days; and
2. only require their employees to work on the public holidays if the request is reasonable and any refusal is unreasonable.

Clayton Utz can assist you with any necessary contract and enterprise agreement reviews and advice relating to employees working on public holidays.