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How the Federal Court Ruling Impacts Public Holidays

Apr 04, 2023


  • 2min

How the Federal Court Ruling Impacts Public Holidays

Industry News
a mining worker overlooking the mines after a landmark ruling regarding public holidays.

The Federal Court has made a landmark ruling that under the National Employment Standards (NES) that employers must request that their team members work on public holidays.

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.

Employers must request team members to work; an established roster or contract does not count.
The principles apply immediately, impacting the upcoming Easter long weekend and public holidays. This will impact many industries, such as healthcare, hospitality, retail, logistics, and emergency services.

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.

Relevant provisions of the Fair Work Act
  • Section 114(1) of the Fair Work Act 2009 (FW Act) entitles employees to be absent from work on a public holiday.
  • Section 114(2) next provides that an employer may request an employee to work a public holiday, if the request is reasonable.
  • Section 114(3) next provides that an employee may refuse the employer’s request, if the request was not reasonable or if the refusal is reasonable.
  • Section 114(4) finally then sets out a number of considerations that should be considered to determine whether a request/refusal is reasonable.

Findings

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.”

How will this impact you? 

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.

Get more out of Total HRM

Guides to help you uncover human resource insights, and make the right changes to improve team delight.

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Working on Australia Day Public Holiday

Jan 11, 2023


  • 2min

Working on Australia Day Public Holiday

Industry News
The University of Wollongong (UOW) has allowed employees to work on Australia Day. The UOW is the first tertiary institution to offer this flexible policy, with other major companies such as Telstra, Network Ten, and Woodside Energy already introduced similar policies. If they choose to work on 26 January, they can choose a substitute date to take off instead. 

The UOW has acknowledged that 26 January is not a day of celebration for all Australians; many Aboriginal and Torres Strait Islanders identify 26 January as a day of invasion, survival and murder. With respect to First Nations people, this year, the UOW has offered all fixed-term and permanent employees the flexibility to work on 26 January and instead choose a substitute day (either Friday, 27 January or Monday, 30 January).

Under the NES, employees and employers can agree to alter their work agreements to work on public holidays.
The growing popularity of introducing this flexible policy has received backlash from people who believe it’s all a power play. Associate Professor of employment law at the University of Technology Sydney, Guiseppe Carabetta, told SBS News that the flexible policy would continue to rise in popularity.  

“Some are doing this given the current ’employee market’ for jobs in certain sectors,” he told SBS News. Mr Carabetta believes that for many smaller employers, they are thinking, ‘Well, I cannot up your wages, so I will offer you other benefits’.

Determining if your employer or industry can make these changes to their public holiday policies depends on the award you fall under or if you have an enterprise agreement or similar. 

If you do not fall under an Award or have no alternate agreement in place, the National Employment Standards (NES) provides employees can choose to substitute a PH if their employer agrees, and vice versa.

Please get in touch with us if you have any questions or need help understanding your options when it comes to Public Holidays. Call us on 1800 868 254 or email info@totalhrm.com.au, and our HR experts will get back to you.

MORE READING:

You can learn more about your public holiday entitlements on the Fair Work website. 

You can read more from the UOW on their website.

Get more out of Total HRM

Guides to help you uncover human resource insights, and make the right changes to improve team delight.

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