If you have employees working over the public holidays you need to read this.

We would like to bring your attention to a recent decision made by the Federal Court on March 28, 2023, which has overturned the conventional approach to rostering employees on public holidays. The decision has significant implications for employers rostering employees to work public holidays, as 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 of 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 the public holiday, and OS MCAP simply rostered its employees to work.

The Full Court of the Federal Court found that the FW Act had been breached as no request was made, and therefore, the working of the public holiday was unlawful. The court further noted that an employer can 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 no employer can rely upon traditional and ordinary rostering to have employees work public holidays. Instead, employers will need to introduce some mechanism whereby a request is made to work a public holiday 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 can be refused by the employees. The communication should also indicate that the roster is, in effect, in draft until any responses to the request have been received.

The decision affects all employers who roster employees to work public holidays, and it is essential to ensure compliance with the FW Act.

If you need any advice and need help, please reach out at hello@hrdynamics.com.au or 1800 877 747