A Full Federal Court decision indicated that employers will not be able to rely solely on provisions in modern awards, enterprise agreements or contracts which require work on public holidays. Nor will they be entitled to issue a formal requirement that employees work public holidays until they have first made a non-binding request and considered the employee's response.

Instead, in all cases (irrespective of what a modern award says or what has been agreed in an enterprise agreement or contract):

• The first step must be to issue a 'request' that employees work on specific public holidays, with an invitation to respond with any personal reasons why the request is not accepted.
• If employees accept the request, that is fine. They can then be required to work the public holiday.
• If they don't, however, the employer must then consider whether having regard to a range of factors, as well as any reasons the employee has advised for not accepting the request, it is still reasonable to require the employee to do so.
• A term in a modern award, enterprise agreement or contract which states a requirement for work on public holidays will be very relevant but not decisive as to whether the request is 'reasonable'.
• Having considered the relevant factors, the employer can make a final decision, which must be advised to the employee, and which may be challengeable.

The decision

Many businesses operate on public holidays throughout a given year – health, aged care, mining, retail, transport and media to name just a few. In many cases, enterprise agreements – and a number of modern awards – provide specifically for employees to work as required on public holidays.

The Full Court of the Federal Court, in a decision CFMMEU v OS MCAP Pty Ltd, has now found that the effect of the National Employment Standards (NES) is that in all cases, employees must be given a choice as to whether they will agree or refuse to work on a public holiday. A failure to make a genuine 'request' to work before imposing a requirement may result in a claim alleging a breach of the NES. Penalties can apply.

The key messages from the decision are:

• There is nothing inherently unlawful in having an operation which includes working hours on public holidays.
• However, the Fair Work Act makes it clear that employers do not have an unqualified right to simply roster or 'require' employees to work on public holidays. A request must be made first in relation to each public holiday.
• An employer cannot rely solely on a term in an employment contract, modern award or enterprise agreement which requires work to be performed on a public holiday.
• Instead, there needs to be a 'request' made by the employer to the employee which gives the employee a choice about agreeing to work the shift or not.
• The request by the employer needs to be 'reasonable'.
• As long as the request by the employer is reasonable, an employee can only refuse to work the public holiday shift if the refusal is reasonable.

There are a number of matters that need to be considered under s 114 of the Fair Work Act when determining whether a request or refusal is reasonable. They include:

• the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
• the employee’s personal circumstances, including family responsibilities;
• whether the employee could reasonably expect that the employer might request work on the public holiday. A positive obligation in Award, enterprise agreement or contract will be relevant but not decisive;
• whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
• the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
• the amount of notice in advance of the public holiday given by the employer when making the request;
• in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;
• any other relevant matter.

How to manage the issue in light of this decision

In practical terms, this means that even if an applicable modern award or enterprise agreement or contract clearly provides for employees to work on public holidays as required, employers should:

• Issue an 'indicative roster' for periods including public holidays, or otherwise issue requests to work on upcoming public holidays.
• Provide an explanation as to why the employer believes the need for the workers to perform work on the public holiday to be reasonable.
• Give the opportunity for each employee to agree to work the shift or otherwise provide their reasons why they will not work the shift.
• Make a final decision taking into account the relevant factors including any reasons offered by individual employees for not accepting the request to work on the public holiday.

An unreasonable refusal by an employee to a reasonable request by the employer may amount to a failure to comply with a lawful and reasonable direction, however great care would need to be taken when dealing with these scenarios.

We are happy to provide specific advice in relation to the impacts of this decision. Please do not hesitate to contact us if you would like to discuss further.