Federal Court spells out the status of public holidays

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We have important news regarding the rights of employees on public holidays.

According to the Fair Work Act 2009, employees have the right to be absent from work on public holidays unless their employer requests them to work and the request is reasonable. Employers cannot roster employees to work on public holidays, however, without seeking their consent.

Recently, the Full Federal Court in CFMMEU v. OS MCAP Pty Ltd clarified that issuing a roster where an employee works on a public holiday erred without first making it clear that that the roster was a draft that was open to discussion.

The Court ruled that employers must make it clear to employees that they have a choice not to work on public holidays and that a request not to work cannot be unreasonably declined.

NatRoad’s advice is that employers should include a note on all rosters confirming that if an employee has been allocated a public holiday to work, it is a request and not a requirement.

The employee has a certain period before the public holiday shift to notify management that they do not wish to work, and this refusal must be reasonable.

Employment contracts can include a term stating that employees may be required to work on public holidays, but this must be consistent with the requirement for employers to provide employees with a choice.

Employers should rephrase contract wording to state that employees may be “requested” to work on public holidays and will be required to work where the request is reasonable, and that a refusal is not unreasonable.

Whether an employer’s request or an employee’s refusal is reasonable will depend on individual circumstances.

These might be the nature of the employer’s workplace or enterprise, the kind of work performed by the employee, the employee’s personal circumstances, whether the employee is entitled to receive overtime payments, penalty rates, or other compensation, and the type of employment of the employee.

If you have any questions, speak to a NatRoad Advisor.