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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Amelie is our Marketing Lead and currently studying for a B.A. in Business and Visual Arts. She brings her visual arts skills and eye for colour and detail to our graphics and design for the business.
Amelie uses her skills as a digital native in our Marketing team and works across our social media channels. Amelie provides administrative support and assists the recruitment team in finding great candidates.
Sarah joins the team at Total HRM following her time in a regional real estate company, most recently in HR. She brings a solid understanding of the unique dynamics and challenges within small and medium-sized businesses.
Prior to real estate, Sarah worked in the airline industry, providing her with excellent skills in customer service and how to remain calm in a crisis.
Known for her positive energy, Sarah approaches her role with enthusiasm and a genuine desire to support and uplift those she works with. With her experience in HR and recruitment, Sarah is committed to fostering a culture of inclusivity, professional growth, and employee well-being. Her ability to connect with people and create a positive work atmosphere contributes to the overall success of teams and the business as a whole.
Ashly is one of our most experienced HR Business Partners with over 20 years of experience in manufacturing and hospitality, both local and overseas, ranging from large multinational companies to small family-owned operations. Throughout his career, Ashly regularly led teams with over 30 employees while continually growing the business and aligning business strategies with employee capabilities.
Ashly has qualifications in Applied Management and Human Resources and a strong leadership and people management background. Ashly combines his experience with his qualifications to develop great workplace cultures while delivering practical support.
As our Business Services Manager, David keeps everything that is Total HRM ticking along – from overseeing administration and finance functions, liaising with clients and suppliers, to IT troubleshooting and keeping everyone on track to deliver effective customer service to all our clients.
In a business landscape of ‘information overload’, Kim’s pragmatic approach simplifies the ever-changing HR trends and legislation to obtain meaningful and maximum benefits for her clients.
Kim is well known for her ability to understand the ‘real’ issues within businesses and to provide solutions for sustained business growth.
Kim has over 20 years of experience in human resources and 15 years of business consulting experience, and she holds post-graduate Business and Human Resource qualifications.
She has vast and varied experience in senior consulting roles across varying disciplines and HR management positions within retail, manufacturing and professional service sectors.
Linda is the Managing Director of Total HRM and has worked for over twenty five years in business and consulting, including executive and senior management roles. She has worked here and overseas in numerous industries, including mining, energy and government. Her experience in areas such as production, strategic planning, finance, OHS/WHS, and lecturing in Human Resources Management at La Trobe University provides her with a unique blend of business and HR capability.
Linda has led comprehensive organisational restructures and implemented programs to improve the effectiveness of businesses with clear alignment between individuals’ contributions and organisational outcomes. She works with various local boards and executive teams in the region. She is a Certified Professional Member of the Australian Human Resources Institute.