May 5, 2023

FairWork Update on Public Holidays

You need to read this if you have employees working over public holidays.

We want to bring your attention to a recent decision by the Federal Court on March 28, 2023, which overturned the conventional approach to rostering employees on public holidays. The decision has significant implications for employers rostering employees to work public holidays. It requires employers to “request" employees work a public holiday before they are required to work the holiday (including by way of a roster).

The case CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51, involved a roster issued by OS MCAP that required 85 employees to work on Christmas Day and Boxing Day. As the holidays approached, OS MCAP communicated with employees that if any had special circumstances, they could request to have the public holidays off. Of these requests, 9 were granted, and the remaining 85 employees worked the public holiday. However, no request was made for employees to work during the public holiday, and OS MCAP rostered its employees to work.

The Federal Court found that the FairWork Act had been breached as no request was made. Therefore, the working of the public holiday was unlawful. The court further noted that an employer could only request an employee to work a public holiday if the request is reasonable, and the employee agrees to work the holiday, or the refusal is unreasonable, triggering a right for the employer to direct the working of the public holiday.

The decision has immediate implications for employers as employers can only rely upon traditional and ordinary rostering to have employees work public holidays. Instead, employers will need to introduce some mechanism whereby a communication request to work a public holiday is made before any direction to work is issued.

Employers relying upon rostering for the upcoming Easter holidays will need to ensure that communications are issued to employees confirming that any roster to work is a request to work that the employees can refuse. The communication should also indicate that the roster is in draft until responses to public holiday work requests have been received.

The decision affects all employers who roster employees to work public holidays, and ensuring compliance with the FairWork Act and Judgment is essential.