Published September 2023

Changes to Public Holidays – Federal Court Decision

A Federal Court decision this year has reiterated that employers and employees must have a clear understanding of the regulations and best practices for managing schedules during Public Holiday periods.

On the 28^th of March 2023, the Federal Court changed the way in which employers require employees to work on public holidays. The decision came out of CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51 and impacts all employers who roster employees to work public holidays.

WHAT HAS CHANGED?

The decision requires that employers must request that employees work on a public holiday – a failure to request that the public holiday be worked could result working on the public holiday being unlawful. It is no longer possible to simply roster an employee to work the public holiday, assume they are accepting of this and consider the matter closed.

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.

An employer can, of course, have a roster which includes public holidays. However, just publishing a roster does not constitute a request, therefore the employer must ensure its employees understand either:

• the roster is in draft requesting those employees who have been allocated to work on the public holiday are to indicate whether they accept or refuse that allocation, or
• where a request is made before the roster is finalised.

Equally, an employment agreement may contain a provision suggesting employees may be asked to work on public holidays where the request is reasonable and a refusal unreasonable.

WHAT SHOULD EMPLOYERS DO?

We have many public holidays coming up, particularly as Christmas is fast approaching. All employers who require employees to work any public holidays should familiarise themselves with the new requirements.

Employers should establish clear processes for:

• communicating with employees ahead of time when the business is requesting they work a public holiday;
• documenting the acceptance or refusal to the employer’s request;
• responding to employee refusals;
• resourcing plans when employees are unable to work on public holidays.

Note that currently, employers cannot rely on contracts or enterprise agreements terms requiring an employee to work on a public holiday.

Furter, employers relying upon rostering for the upcoming public holidays will need to ensure communications are issued to employees confirming that any roster to work is a request to work that can be refused by the employees (if that refusal is reasonable). The communication should also indicate the roster is, in effect, a draft roster until any responses to the request have been received.

Note that this change to Public Holiday requests is still being challenged in the High Court. Should a decision change the way employers should treat public holidays, Edwards HR will provide further update.