Understanding Public Holiday Entitlements ahead of the 2023 Holiday Season

With the end of the year fast approaching and the subsequent scattering of public holidays, it is important for employers to be aware of the practicalities of rostering on, or providing time off, to employees.

In accordance with the Fair Work Act 2009 (Cth) (FW Act), employees have the right to be absent from work on public holidays and for permanent employees, to be renumerated for their usual hours of work on that day. For many employees, their employers do not operate on public holidays and for that reason difficulties do not arise.  However, for businesses that do operate over a holiday period, employers may make reasonable requests for employees to work on these days particularly if such clauses are within employment contracts. But, employers need to be mindful that employees can also reasonably refuse such requests.

Key Case – CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51

In a recent Full Court of the Federal Court decision, the requirement to ‘request’ an employee to work on a public holiday was examined in detail.

In short, employees of OS MCAP had contracts which outlined that they may be required to work on public holidays in order to comply with a 7 days on, 7 nights off roster pattern.  Rosters were subsequently provided to employees showing all the days they were required to work, including public holidays.  A number of employees sought to take leave over the upcoming Christmas/New Year period, with OS MCAP unable to accommodate all the requests and ultimately requiring some 85 employees to work on those public holidays.

The Union brought a claim on behalf of OS MCAP employees, alleging a contravention of the FW Act.

Ultimately, the Full Court of the Federal Court found in favour of the Union, in that an employer is required to ‘request’ that an employee work on a public holiday if reasonable, and that employees were able to refuse such request in reasonable circumstances.

The decision further enforced the entitlement to be absent on public holidays as one of the National Employment Standards which are found in the FW Act, and could not be overridden by any contractual arrangements.

Essentially, it was held that “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”.

Whilst BHP did recently seek leave to appeal the decision to the High Court, the High Court refused such request.  The case has now been remitted back to the Federal Court determine remedy and penalties.

Note for Employers

The case of serves as a reminder to employers to follow the procedure outlined in the FW Act when arranging the public holiday roster.  Employers would be ill-advised to rely on an agreement or contractual provision in addressing staffing requirements on public holidays where such documents do not specifically ‘request’ the employee to work on certain days – and does not seek their ‘consent’.

In striking the difficult balance between maintaining essential operations and keeping employees happy, employers should be aware that rostering staff and expecting them to work on a public holiday is insufficient.

The Full Court’s decision suggests that employers must presume all employees will be absent on public holidays and then must actively ask employees to work on these days.  As such, we recommend that employers:

1. Keep an eye on the calendar and be aware of the upcoming public holidays and secure rostering arrangements well in advance.
2. Provide generous notice, offering employees plenty of time if requesting they work on a public holiday or make alternative arrangements.
3. Genuinely request employees to work on public holidays.
4. Welcome discussions and creativity in finding rostering solutions.

HR Legal can assist in reviewing any public holiday rostering issues that arise in the coming months and well into the future.  Please contact us should you require further clarification.