While in recent times we have accurately predicted that a number of Federal Court decisions would, and have been, overturned by the High Court (cf. Skene, Rossato and Mondelez) and that the practical effects of this decision in terms of the “pub test” are very significant, we think that the far better view is that the Federal Court’s decision in this case is correct and that employers should move quickly to comply with it. We also think that there are still fairly reasonable ways in which compliance can be achieved.
In Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, a Full Court of the Federal Court has held that employers are no longer permitted to automatically roster or require employees to work on public holidays without first providing a reasonable request to that employee to work.
With the Easter and ANZAC Day public holidays fast approaching, it is imperative that employers are aware of these requirements and review their public holiday rostering in light of the Full Court’s decision.
FACTS OF THE CASE
The proceedings stemmed from a claim by the CFMMEU that Operations Services MCAP Pty Ltd (OS), a labour hire company utilised by BHP, breached s114 of the Fair Work Act 2009 (the Act) and, by extension, one of the National Employment Standards (NES), in requiring 85 of its employees to work on Christmas Day and Boxing Day in 2019. It was not in dispute that the relevant employees were on standard form contracts which provided that they may be required (not requested) to work on public holidays and that payment for this is already incorporated in their existing remuneration. Relevantly, s114 of the Act states:
- An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
- However, an employer may request an employee to work on a public holiday if the request is reasonable.
- If an employer requests an employee to work on a public holiday, the employee may refuse the request if:
(a) the request is not reasonable; or
(b) the refusal is reasonable.
At first instance, the Court held that the employer had not breached s114 of the Act by requiring employees to work during the designated public holidays – essentially because the judge concluded that “require” and “request” essentially meant the same thing. The decision was appealed to the Full Court of the Federal Court, which subsequently overturned the decision.
DECISION
On 28 March 2023, a Full Court of the Federal Court comprising Justices Collier, Thomas and Raper held that a request for the employee to work on the public holiday within the meaning of s114(2) is to be defined in accordance with the ordinary meaning of the word “request” – that being that a “request” must be in the form of a question where the employee is given the chance to agree or refuse.
The Court’s rationale was essentially that:
- The plain words of the provision prescribe a “request”. This is different from the word “require”.
- The surrounding provisions of the NES discernibly distinguish between, and variously use either singularly or together (see for example s62 with respect to maximum weekly hours of work or s76 concerning requests to extend unpaid leave, among others), “require” and “request” in accordance with those plain meanings.
- In the case of s114, only “request” is used.
The Court concluded that the structure of the provision encourages a conversation and requires that there first be a request and only after that secondly there be a capacity to refuse. The Court notes that through discussion and negotiation, the employer could still require the employee to work on a public holiday if the refusal to work by the employee was unreasonable. In determining whether a request or a refusal of a request to work on a public holiday is reasonable or unreasonable, the following factors outlined in s114(4) of the Act must be considered:
- The nature of the employer’s workplace and the nature of the work performed by the employee (employer’s business requirements).
- The employee’s personal circumstances (including family responsibilities).
- Whether the employee could reasonably expect the employer might request work on the public holiday.
- Any additional pay that the employee may be entitled to receive (overtime payments, penalty rates/other compensation).
- Type of employment of the employee (full-time, part-time or casual).
- Amount of notice in advance of the public holiday given by the employer in making the request and then that if the employee when refusing the request.
- Any other relevant matter.
If it is determined that the employee’s refusal to the request is unreasonable, only then can a ‘requirement’ to work issue.
IMPLICATIONS
As indicated above, while the case may be of interest from the perspective of practicality as to whether a special leave application to the High Court may be entertained, we regret to say that at best for our part that we can’t see that this case is anything other than an orthodox outcome of statutory interpretation principles.
In those circumstances, we think that it is essential to review:
- Contracts of employment and policies which provide that employees are “required” to work on public holidays.
- The articulation of rosters to make clear that any work on a public holiday is initially a “request” and takes the form of a question for an employee to refuse, not that they are simply assumed to work.
- Directions from managers to work are not given until such time as a request has been made, the employee has responded and the reasonableness of that response has been assessed (including by reference to the employer’s business requirements and any additional pay that they may receive alongside all of the other s114 factors listed above) as still warranting the working of the day by the employee.
In our view, these steps are appropriately implemented immediately – including for this coming Easter and ANZAC Day, rather than waiting for any subsequent High Court case.
If you have any questions in relation to the decision and its impact on your workplace, feel free to contact a member of the Workplace Relations & Safety team.
