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Apr 04, 2023
The Federal Court Ruling Impacts Public Holidays by putting the request to work on the employer, rather than assuming an employee will work a public holiday because it’s on their rostered day on.
The NES overrides contracts, awards and enterprise agreements. Team members have the right to refuse to work if they have reasonable circumstances. This Federal Court ruling will override any contractual or agreement obligations.
A roster or previous agreement does not count as a request. If an employer does not request that the public holiday be worked and still rosters a team member on, it will be considered unlawful and in breach of the Fair Work Act.
The decision was handed down on 28 March 2023 and overturned the generally accepted conventions for rostering team members on public holidays.
The case was prompted by company OS MCAP, employed by mining giant BHP, who works under a 7 days on, 7 days off roster. During the Christmas and Boxing Day holidays, OS MCAP required 85 team members to work 12.5-hour days at the mine, which is operational 24 hours a day and 365 days per year. The workers did not receive any extra pay for those days.
The Full Court found that under section 114(1) of the FWA entitles employees to be absent from work on a public holiday. They emphasised that working on a public holiday could only occur lawfully if the employer has made a request.
The judges said, “the intended mischief the provision confronts is the inherent power imbalance that exists between employers and employees. By virtue of this imbalance, employees will often feel compelled, and not understand, that they have the capacity to refuse a request that is unreasonable or where their own refusal is reasonable.”
“The requirement that there be a ‘request’ rather than a unilateral command prompts the capacity for discussion, negotiation and a refusal.”
The Federal Court ruling impacts all upcoming public holidays as employers must find a way to request their team members work a public holiday before any direction to work is issued (i.e. a roster).
This will need to be enacted before the Easter Holidays – if you have already rostered your team members on for the upcoming public holidays, employers must communicate to their team members that they can refuse to work. We encourage you to meet and have a discussion with your team members to discuss individual arrangements.
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