A decision by the Full Federal Court has brought clarity to the terms “required” and “requested” in relation to public holiday working requirements. Sean Carroll finds out what it means for tradies.

BHP Operations Services (OS MCAP), which employs people to operate mobile machinery for BHP at Daunia Mines, was taken to court recently by the CFMMEU for a breach of the Fair Work Act 2009 (Cth).

The employees were engaged in contracts that stated that employees may be required to work public holidays, depending on the roster type. This is essential as the workplace operated 24 hours a day, every single day of the year.

In August 2019, the number of employees applying for leave on Christmas and Boxing Day was more than expected, and OS MCAP informed employees that only six workers could be absent from work on those days.

To remedy the issue, the employer randomly selected employees who had submitted for leave on those days; some employees with ‘individual circumstances’ could raise this with their line leader if they also needed to take leave.

One key element to note is that the employer didn’t make a request for its employees to work on these public holidays and didn’t inform them of their right to refuse.

Section 114 of the Fair Work Act states that an employee is entitled to be absent on a public holiday, but that an employer may request them to work on that day if it’s reasonable. The dispute between the employer and the CFMMEU was centred around whether OS MCAP, in requiring 85 employees to work on Christmas and Boxing Day unless they were permitted by the employer to be absent, contravened this provision.

COURT RULING

In the first instance, the Federal Court primary judge ruled in favour of the employer on the basis that a ‘requirement’ to work can be considered a ‘request’ to work. This decision was appealed by the CFMMEU to the Full Federal Court who overturned the initial ruling.

The Full Federal Court focused on the definition of ‘request’ and concluded that ‘requiring’ an employee to work on a public holiday is not the same as ‘requesting’ an employee to work on a public holiday on the following bases:

• In its ordinary meaning, a ‘request’ allows an employee with the opportunity to refuse and includes ‘leaving room for negotiation and discussion’, whereas a ‘requirement’ doesn’t allow for a choice to work.
• Other National Employment Standards (NES) entitlements have not used the words ‘request’ and ‘require’ interchangeability. For example:
  • The maximum hours entitlement prohibits an employer from ‘requesting’ or ‘requiring’ an employee from exceeding the maximum weekly hours, which suggests that they are two separate types of direction.
  • The unpaid parental leave provisions specifically allow an employer to ‘require’ an employee to take leave under certain circumstances, which has not traditionally been viewed as an employer providing a choice to the employee to do so.

In the final verdict, the court observed that this doesn’t mean that employees cannot be rostered to work on a public holiday, but that employees should be informed that the roster is in draft and can be amended depending on whether the employee accepts or refuses to work on the public holiday.

Employees can still be required to work public holidays, as long as the following conditions are met:

• The employer must make a request for the employee to work on the public holiday;
• The request must be reasonable;
• The employee is informed that they have the right to refuse; and
• The employee accepts the request or the employee exercises their right to refuse the reasonable request and their reasons for refusal is not reasonable.

And the following obligations cannot be displaced by provisions in an Enterprise Agreement, employment contract or company policy:

• If businesses have an employment contract term that indicates an employee may be required to work a public holiday, this does not displace the employee’s right to refuse, regardless of whether the annualised salary has taken into account public holidays being worked.
• Employers should review current contract terms and redraft them so that an employee may be asked to work on public holidays and may be required to do so where the request is reasonable and a refusal is unreasonable.

From a management level, employers will need to revisit their employment agreements to ensure that any provisions therein dealing with work on public holidays are consistent with this decision – namely, these provisions should simply foreshadow that employees may be asked to work on public holidays. Employment agreements should not stipulate that employees are, or may be, required to do so.

A breach of this legislation would be a breach of NES and would attract civil penalties.