In March, the court released a decision on appeal in the Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP case, finding OS had breached the National Employment Standards (NES) of the Fair Work (FW) Act. 

The case centered around the interpretation of the word ‘request’ and whether the FW Act allows employers to ‘require’ an employee to work on a public holiday. 

Request wasn’t made 

In this particular case, OS – which employs workers to operate mobile machinery on mines sites – was engaged to provide production services 24 hours a day, 365 days a year at a Queensland mine. The mine workers were on standard form contracts stating they “may be required to work on public holidays and payment for this expectation has been incorporated into existing remuneration”.  

In 2019, OS had several workers submit requests for annual leave for Christmas Day and Boxing Day. 

With the contractual arrangements allowing up to seven mine workers per roster to be absent on planned leave at any one time, OS was unable to approve all the annual leave requests. 

A ballot system was used to select the seven workers whose leave would be approved. The remaining 85 workers were required to work the Christmas Day and Boxing Day public holidays. 

OS never made a request to ask employees to work these public holidays. The assumption was those rostered to work those public holidays would unless they made an approved application for leave. There was no communication from OS about employees’ rights regarding public holidays under the NES. 

Best practice 

As evidenced in this recent case, employers must adhere to the NES which says employees are entitled to the day off on public holidays and be paid. This right cannot be overruled by contracts or enterprise agreements. 

However, an employer may request an employee to work on a public holiday if the request is ‘reasonable’. 

The court provided multiple reasons to justify the request as reasonable including:  

• operational requirements  
• contractual requirements  
• the nature of the enterprise (such as for emergency services including firefighting, medical services, police officers)  

Once the employer has ensured that it is a reasonable request, the employer can issue the request. 

The Court suggested two ways to do this: 

1. Issue a roster which includes public holidays, ensuring employees understand this is a draft roster for public holiday work which they must accept or refuse.
2. Ask a question before the roster is finalised, where public holiday work is accepted or refused. 

A refusal may be unreasonable based on:  

• The nature of the enterprise and work performed by that employee
• Employee’s personal circumstances 
• Whether the employee could reasonably expect the employer might request work on the public holiday
• Whether the employee is entitled to compensation for working on a public holiday or has a level or remuneration that reflects the expectation of work on the public holiday
• Type of employment such as part time, full time, casual, shift work 
• Amount of notice in advance of the holiday when making the request 
• Amount of notice in advance of the holiday when refusing the request 
• Any other relevant matter 

This can be a significant endeavour and requires careful consideration.    

This decision means employers who have not been requesting employees to work public holidays in the past will need to undertake additional steps to comply with the NES which will take additional time and resources. 

CCIWA knows this is an area which might affect many employers, and it is something which many employees are aware of. The consequences of breaching the NES can be significant and we would encourage a considered approach being taken in regard to working public holidays. 

If you have any questions about working public holidays, contact our Employee Relations Advice Centre on 9365 7660 or email [email protected] or if you would like to speak to one of our employment lawyers, email [email protected].