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Federal court rules employers cannot force employees to work on public holidays

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Australian court rules on holiday work requests.

The Federal Court in Australia has recently made a ruling in an appeal case, which stated that employers are only allowed to request, but not require, their employees to work on public holidays. This decision was reached in the case of ‘Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51’, which involved the mining company BHP’s labor hire provider, OS MCAP, and their contract which stated that employees may be required to work on public holidays without any additional pay.

This ruling is expected to impact other industries such as aviation, logistics, and hospitality. The case involved 85 employees who worked on Christmas Day and Boxing Day in 2019 at the Daunia Mine in central Queensland, without receiving any extra pay. The Construction, Forestry, Maritime, Mining and Energy Union argued that by imposing a requirement for these employees to work on public holidays, OS MCAP contravened the National Employment Standards and the Fair Work Act.

Section 114 of the Fair Work Act 2009 affords employees the right to refuse to work on public holidays, unless it is reasonable to do so. However, OS MCAP did not request their employees to work on those days nor did they communicate that employees had the right to refuse to work on public holidays. As a result, the labor hire provider will have to pay penalties, the amount of which has not yet been determined.

The decision is likely to affect any employer who operates on a roster that includes work on public holidays. According to Australian law firm HWL Ebsworth, all employees who work on rosters that would ordinarily fall on public holidays must be explicitly “requested” to work and can refuse the request if it is not reasonable. The ruling could also result in civil penalties for employers who automatically roster their employees on public holidays.

However, employers can still require employees to work on public holidays if their refusal is deemed unreasonable given the nature of the work, reasonable employer expectations, the type of employment, the amount of notice provided, and the level of pay. Employers are still able to have rosters that include public holidays as long as they ensure that employees understand that the roster is in draft and that they have the right to indicate whether they accept or refuse the allocation for holiday work.

BHP is currently reviewing the decision and considering appeal options.

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