The Full Court Rules on Requesting Employees to Work on Public Holidays

OWEN WEBB - AHA | SA WORKPLACE RELATIONS MANAGER

On 28 March 2023, a Full Court of the Federal Court of Australia found that BHP’s labour hire division had contravened the Fair Work Act 2009 (Cth) (‘FW Act’) when it unreasonably required employees to work over the Christmas and Boxing Day public holidays. The Decision centred on the requirements of section 114 of the FW Act.

BACKGROUND

OS MCAP Pty Ltd (“OS”), provides production services employees to mining companies which are part of the BHP Group. The services involve OS employees operating mobile machinery such as loaders and trucks to excavate and carry earth.

In this particular matter, OS provided production service employees across 2 crews to BM Alliance Coal Operations Pty Ltd (“BMA”) at the Daunia Mine in Central Queensland. The employees worked a 7 days on, 7 days off, 7 nights on, 7 off working pattern with 12.5 hours per shift plus reasonable additional hours as required. OS employees’ contracts of employment stipulated that they “may be required to work on public holidays”. OS employees were also provided with details of all of their shifts when they first commenced employment including the public holidays they would be required to work for any periods their shifts fell on public holidays. Operationally OS’s business model and operational requirements at the Mine required its production workforce to operate 24 hours per day, 365 days per year.

OS management were aware that a number of employees had requested to take leave on the Christmas Day and Boxing Day public holidays in 2019 and ultimately authorised 25 employees to take leave on those particular public holidays. However, a significant number of employees (approximately 85) worked at the mine on those public holidays due to operational reasons as OS had certain production targets that needed to be met under their arrangements with BMA. There were also a number of employees that failed to attend work on those public holidays without authorisation.

CFMMEU v OS MCAP Pty Ltd (No 2) [2022] FCA 132

The Construction, Forestry, Maritime, Mining and Energy Union (“the Union”) issued proceedings in the Federal Court against OS. The Union alleged that OS had:

• contravened s 44 of the FW Act, by breaching s 114 by requiring employees to work on Christmas Day and Boxing Day 2019; and

• contravened s 45 of the FW Act, by contravening cl 27.4 of the Black Coal Mining Industry Award 2010 (“Award”) by failing to pay the employees penalty rates for work performed on the two public holidays in question.

Section 114(2) of the FW Act provides that an employer may request an employee to work on a public holiday if the request is reasonable. The Union submitted that OS did not make a reasonable “request” for the employees to work on these particular public holidays, but rather “required” them to work on these public holidays and therefore contravened s 114(2).

The Union’s application was dismissed, with the Judge citing that OS had adduced sufficient evidence to demonstrate that the requirement for its employees to work on these particular public holidays was reasonable. In particular, the Judge noted that:

• OS had demonstrated an operational need for its employees to work on public holidays, including Christmas Day and Boxing Day.

• The employees were given notice before they accepted employment with OS that they were expected to work on public holidays falling within their ordinary rosters, and were specifically informed and reminded after they commenced employment that they were required to work on Christmas Day and Boxing Day.

The Judge also dismissed the application for payment of penalty rates, as the employees were paid an annualised salary that was at a level that was adequate to reflect penalty rates payable under the Award for working on public holidays falling within their rosters, including Christmas Day and Boxing Day.

CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51

The Union appealed the decision of the primary Judge and the matter was heard before a Full Court of the Federal Court in November 2022. The grounds of the Union’s appeal included:

• Ground 1. Whether the primary judge erred in determining that the exception under s 114(2) of the FW Act applies where the employer does not request but rather imposes a requirement on an employee to work on a public holiday.

• Ground 2. Whether the primary judge erred in determining that the Union bore the legal onus of establishing that the requirement for the employees to work on Christmas and Boxing Days 2019 was not reasonable.

• Ground 3. Whether the primary judge erred in determining that OS’s requirement for its employees to work on Christmas and Boxing Days 2019 at the Daunia Mine was reasonable for the purposes of s 114(2) of the FW Act.

The Full Court allowed the appeal on the basis the Union succeeded on appeal ground 1.

The Full Court determined that OS was not permitted to require employees to work on the Christmas and Boxing Day public holidays, because it did not make a “request” for the purposes of ss 114(2)-(3). The Full Court determined that a breach of s 114 occurs when an employee is required to work on the public holiday, does in fact work on that day, and no request was made or a request was made but it was not reasonable. OS accepted that it hadn’t made a “request” and therefore the Full Court determined that a contravention of section 114 of the FW Act had occurred.

WHAT DOES THIS DECISION MEAN FOR HOTELS?

Work on a public holiday is a common feature in the hospitality industry and is recognised through penalty rates and additional public holiday entitlements contained in the Hospitality Industry (General) Award 2020 (‘HIGA’).

While this Decision and the resulting news coverage may insinuate that employees have free choice about whether to work on a public holiday or not, the requirements of section 114 still apply.

Section 114(3) of the Act provides that an employee may refuse to work on a public holiday if the request to work was unreasonable or the employee’s refusal was reasonable. Importantly, this Decision does not remove an employer’s ability to require an employee to work on a public holiday if the request to work was reasonable, and the employee’s refusal was unreasonable.

Section 114(4) refers to what factors must be considered to determine whether a request, or a refusal of a request to work on a public holiday is reasonable.

Such factors include:

• The nature of the employer’s workplace including its operational requirements

• 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, penalty rates or other compensation for, or a level of remuneration that reflects expectations of, work on the public holiday

• The amount of notice in advance of the public holiday given by the employer when making the request

• The amount of notice in advance of the public holiday given by the employee when refusing the request

• Any other relevant matter

If an employer has reasonably requested an employee to work on a public holiday and the employee has responded by refusing the request, the employer can again refer to section 114(4) to assess if the employee’s refusal was reasonable.

REQUESTING AN EMPLOYEE TO WORK A PUBLIC HOLIDAY

When requesting an employee to work a public holiday, hotels must ensure that their employees are provided with an opportunity to accept or refuse the request. The request to work on a public holiday has to be a question, not a direction. For example,

• Providing a draft roster to employees and allowing employees to indicate if they would accept or refuse the shift, or

• Making the request in the form of a question.

Hotels should also review existing employment contracts. It is recommended that employment contracts make it clear that the employee is entitled to be absent on a public holidays, however due to the hospitality industry, it is likely that they will be requested to work. This will be useful to foreshadow any later request from the employer.

If an employee refuses to work the public holiday

Section 114(3) of the Act provides employees with the option to refuse the request to work on a public holiday, on reasonable grounds. If an employee refuses the request, hotels are encouraged to have discussions and negotiations with the employee about the refusal of the request.

If after those discussions and negotiations the employer determines their request for the employee to work the public holiday was reasonable and that the employee does not have reasonable grounds to refuse the request, the employer can require the employee to work the public holiday. This is consistent with the Federal Court’s Decision at paragraph 5:

“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.”

CASUAL EMPLOYEES

Section 15A of the Act provides that casual employees have the discretion whether or not to accept shifts that are offered to them, irrespective of whether it is a public holiday or just a standard day of the week. By virtue of the nature of casual employment, the employer cannot compel a casual employee to work any shift that the casual employee does not want to work.

However, the employer still has an obligation under section 114(2) to request that an employee work on a public holiday regardless of whether the employee is full-time, part-time or casual.

SUMMARY

The key issue in this case was that the employer had not in the Court’s view complied with the requirement to request an employee to work on a public holiday per section 114(2) of the FW Act. The Court held that an employer must make a reasonable request for the employee to work on a public holiday and that the employee be provided an opportunity to make a choice to either accept or refuse the request.

Importantly, the decision does clarify that if an employer makes a reasonable request and the employee unreasonably refuses, the employer can still require the employee to work on the public holiday.