Requirement to work on a Public Holiday
On 28 March 2023, the Federal Court of Australia handed down its decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd  FCAFC 51, which examined how work on public holidays should be arranged, having regard to the Fair Work Act 2009 (FW Act).
Section 114 of the FW Act provides:
114 Entitlement to be absent from employment on public holiday
Employee entitled to be absent on public holiday
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.
Reasonable requests to work on public holidays
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:
the request is not reasonable; or
the refusal is reasonable.
OS MCAP Pty Ltd (OS MCAP) engaged employees on employment contracts that included a clause that employees may be required to work public holidays. Evidence showed that OS MCAP never asked if employees were willing to work on a public holiday but rather rostered employees to work on public holidays, assuming they would do so unless they had applied for and had been granted leave.
OS MCAP asserted that any request to work on a public holiday included a requirement to do so. The Union argued that this contravened s.114 of the FW Act.
The Court found in favour of the Union.
Section 114(1) affords employees the protection to not being required to work on a public holiday. Section 114(2) permits an employer to request an employee to work on a public holiday, and under s114(3), a request can be refused if it is not reasonable or the refusal is reasonable. By imposing an irrefutable “requirement”, the Court held that OS MCAP had not made a “request” required by s.114(2).
The Court also observed that the entitlement to be absent on a public holiday is one of the provisions of the National Employment Standards (NES) that cannot be superseded by contractual arrangements.
For AFP appointees, a requirement to work on a public holiday may not meet NES requirements.
The consequences of the decision appear to be that the AFP must presume all employees will be absent from work on public holidays and that they must ask employees to work rather than expect them to.
Can the AFP require an employee to work on public holidays?
The decision does not necessarily prevent the AFP from requiring an employee to work on a public holiday. If the AFP’s request to work is reasonable, and the employee has no reasonable basis for refusing, then the AFP may require the employee to work on a public holiday. Operational requirements, contractual obligations, and the nature of the enterprise are all factors relevant to whether a request to work is reasonable.
However, when rostering employees, the AFP cannot merely create a roster and expect employees to work on the public holiday. Rather the Court determined 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.
Reasonable reasons to decline the request include (but are not limited to): work-life balance, personal circumstances/caring responsibility or pre-planned other occasions.
For further information and advice, please contact the Legal and Industrial Team by email at email@example.com or on (02) 6285 1677.