Key Case – CFMMEU v OS MCAP Pty Ltd  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.