The way employers roster public holidays in Australia could significantly change based on a recent court ruling.
While the clause ‘may be required to work public holidays’ might be included in employment contracts, based on an appeal granted in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd  FCAFC 51, rostering processes might be in for a shakeup.
A landmark court ruling has found that employers must ask workers if they want to work public holidays and cannot just automatically roster them on. This is in line with the National Employment Standards (NES), which override contracts, awards, or enterprise agreements and mandate that employers make reasonable requests for workers to work public holidays. A roster or contractual requirement does not count as a request.
The court case involved 85 employees of BHP’s internal labour hire outfit, operations services, who were required to work on Christmas Day and Boxing Day in 2019 at BHP-Mitsubishi Alliance’s Daunia Mine in central Queensland. The ruling could have significant implications for a wide range of industries, including resources, logistics, retail, hospitality, health, and emergency services.
The judgement is a significant win for unions, which have long campaigned for workers to have greater rights to choose whether to work on public holidays. The court has affirmed the principle that there is an inherent power imbalance between employers and employees, which can make it difficult for workers to refuse unreasonable requests to work.
By requiring employers to make a genuine request for workers to work, the court hopes to promote discussion, negotiation, and give workers the possibility to refuse. The ruling is likely to prompt employers to adapt and provide workers with a genuine choice that allows them the right to refuse. Lawyers have warned that many employers may not have catered for this process and could find themselves on the back foot.
The court has said that employers can still require workers to work on public holidays if their refusal is unreasonable given:
- the nature of the work,
- reasonable employer expectations,
- the type of employment,
- the level of pay.
The court has also acknowledged that it may be “administratively burdensome” for some employers to request staff to work, but that this is an ordinary predicament for any employer asking employees to work non-standard hours.
While the ruling has been welcomed by unions, it has been criticised by some employers who argue that it will make workplace relations more complex. Australian Industry Group Chief Executive Innes Willox has said that it is “very common” in many industries for employees to routinely have to work on public holidays as a part of their role.
He argues that many employers will now need to issue separate ‘requests’ for employees to work on these days. However, the court has made it clear that employers can still include public holidays in rosters as long as the request highlights:
- the roster is being drafted (and is not yet final) and,
- employees have the right to refuse to work that day.
In conclusion, the court ruling that employers must ask workers if they want to work public holidays and cannot just automatically roster them on is a significant win for workers’ rights. The ruling recognises the inherent power imbalance that exists between employers and employees and seeks to promote discussion, negotiation, and the capacity for workers to refuse unreasonable requests. While the ruling may make workplace relations more complex, it is an important step towards ensuring that workers have greater control over their working conditions.
Should you have questions or require support on this, we encourage you to contact our Polyglot HR Outsourcing Services team on HRservices@thepolyglotgroup.com