On 28 March 2023, the Full Federal Court delivered a decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (the Full Federal Court Decision) which had significant impacts for all employers who operate on public holidays.  The Full Federal Court Decision outlines the requirements for employers to actively request that employees work on public holidays, rather than simply issue a roster for example

On Monday 21 November 2023 the High Court dismissed an application made by BHP to challenge the Full Federal Court Decision.

The Full Federal Court Decision remains law.

Lets Re-Cap the Facts
The case involves 85 employees of OS MCAP Pty Ltd who worked at the Daunia Mine (the Mine) in Queensland and were required to work on Christmas Day and Boxing Day in 2019.

The employment contracts expressly included that employees may be ‘required’ to work on public holidays.  Employees argued this requirement was not consistent with the Fair Work Act 2009 (Cth) (the Act).

 The Fair Work Act
Section 114 of the Fair Work Act 2009 (Cth) (the Act) is part of the NES and entitles an employee to be absent from employment on a public holiday and provides that an employee can refuse a request to work on a public holiday if the request is not reasonable, or the refusal by the employee to work is reasonable.

Section 114(4) of the Act provides the factors for considering reasonableness which include:
• The nature of the workplace including operational requirements;
• The nature of the work performed by the employee;
• The employee’s personal circumstances;
• Whether the employee could reasonably expect to be requested to work on a public holiday;
• Whether the employee receives additional remuneration;
• The nature of the employment (full-time, part-time, casual);
• The amount of notice provided;
• Any other relevant matter.

Full Federal Court Decision
The Full Federal Court ultimately decided that despite any clause to the contrary provided in a contract or Enterprise Agreement, the right of an employee in s114 of the Act remains intact and that a request must first be made to an employee regarding work on a public holiday. For this purpose, a request is the opening of discussions, not a demand to do something.

Challenge to the Full Federal Court Decision
BHP on behalf of OS MCAP sought special leave to contest the Full Federal Court Decision.  The High Court transcript of the special leave application outlines the arguments of the parties, which we summarise below:

BHP’s submissions included:

  • The words ‘request’ and ‘requirement’ sit within one spectrum of communication, without a sufficiently clear distinction;
  • The lack of distinction between the words creates uncertainty in applying penalties for non-compliance under section 44 of the Act for a breach of the NES;
  • The distinction  would create unnecessary and unproductive industrial dispute around the context of words spoken or used by managers operating businesses;
  • By way of example, if an employee requests to extend their parental leave by using words such as “you must extend my leave”, that employee is not enlivening the provisions that require a request.

The CFMMEU’s submissions included:

  • In drafting the provisions, parliament deliberately considered the use of the word request over require and chose to use request, as can be demonstrated by the use of request in relation to flexible working arrangements, and use of require in the context of casual conversion;
  • In an employment context, a requirement would suggest some disciplinary action may follow from a refusal to do so, which would be inappropriate;
  • The purpose of the legislation is to provide that employees should not be compelled to work on a public holiday without a reasonable process taking place.

Ultimately, the only reason for the decision not to grant special leave that can be discerned from the transcript is that the Court was of the view that there were “insufficient reason to doubt the correctness of the decision of the Full Court of the Federal Court of Australia”.

How to Require an Employee to Work on Public Holidays
The Full Federal Court Decision does not mean employers should be concerned about asking employees to work on public holidays.  Employers must however follow a process, to avoid contravening the Act and the NES.  The following steps must be taken by employers who need employees to work on public holidays:

Step 1: The employer must request employees work on the public holiday (this may be by sending a draft roster) and seeking feedback. This request must be reasonable.
Step 2: The employee will then either accept or refuse to work on the public holiday.
Step 3: If the employee refuses, the employer must consider the reason for the refusal.
Step 4: If the refusal is reasonable, they must not be required to work the public holiday.
Step 5: If the employee’s refusal to work on the public holiday is not reasonable, the employer can direct the employee to work on the public holiday.

If you require advice on this, or any other employment related matter, please contact us.

Link to the March Decision
Link to Special Leave Application Transcript

Written by Kate Barter and Nicole Dunn