As Australians prepare for the Easter long weekend and ANZAC Day public holiday, hospitality businesses are reminded of a recent Australian Federal Court ruling which shifts the rules around working on public holidays.

While many industries take public holidays for granted, there are a number including hospitality and retail, where there is an implication and even expectation that employees will work on these days.

However the Federal Court’s recent ruling Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, found that employees were entitled to be absent from work on a public holiday. It went on to say that employers could request that employees work on a public holiday, however, specifically empowered employees to refuse such a request in certain circumstances.

The Court also observed that the entitlement to be absent on a public holiday is one of the National Employment Standards (NES), and as such could not be supplanted by any contractual arrangements.

In a review of the ruling, Daniel White, Partner, Alex Millman, Senior Associate and Jacob Fowler, Graduate with law firm Mills Oakley stated: “Employers may still include in their contracts of employment advance notice that employees may be required to work public holidays, but the Full Court appears to suggest this cannot be a standing request. Rather, when making arrangements for rostering employees to work on public holidays, it would appear that employers must positively request employees to work on the public holiday, and ideally note that:

A) the employees may refuse the request; but

B) the employer may insist that they work the public holiday if the request is reasonable and there is no reasonable basis for refusal.

“The request should be given as far in advance of the specific public holiday as possible. Employers should also inform employees that any refusal must be communicated promptly to allow for discussion or the making of alternative arrangements.”

Further suggestions from Dan Williams, Partner, and Toby Walthall, Special Counsel at Minter Ellison in how employers can manage the issue in light of the decision, states: “In practical terms, this means that even if an applicable modern award or enterprise agreement or contract clearly provides for employees to work on public holidays as required, employers should:

  • Issue an ‘indicative roster’ for periods including public holidays, or otherwise issue requests to work on upcoming public holidays.
  • Provide an explanation as to why the employer believes the need for the workers to perform work on the public holiday to be reasonable.
  • Give the opportunity for each employee to agree to work the shift or otherwise provide their reasons why they will not work the shift.
  • Make a final decision taking into account the relevant factors including any reasons offered by individual employees for not accepting the request to work on the public holiday.

“An unreasonable refusal by an employee to a reasonable request by the employer may amount to a failure to comply with a lawful and reasonable direction, however great care would need to be taken when dealing with these scenarios.”

Deepesh Banerji, Chief Product Officer at staff scheduling software firm Deputy, said: “The declaration by the Australian Federal Court last week, requires employers to ask workers if they want to work public holidays, and cannot automatically roster them work. This is a welcome change that will positively impact shift workers across a range of industries — from aged care to hospitality to retail — delivering more flexibility, and fairness resulting in more engaged teams.

“Many businesses formerly assumed that employees accept working on public holidays when they join operations that work 24/7, and labour shortages have exacerbated the issue. Ahead of the Easter long weekend and ANZAC Day public holiday, we look forward to seeing more shift workers get the option to spend time with their loved ones — something the white-collar workforce has long been able to do.

“The technology exists today to assist both employers and employees with the court’s ruling and also establish a level of trust between the two. By making use of technology like Deputy’s Shift Confirmation feature, businesses will be able to stay ahead of this ruling and get employees’ consent before rostering them on public holidays.”

The ruling has changed the ways that hospitality and retail operators conduct public holiday rosters, Better HR, has produced a fact sheet on what employers need to know about public holidays. You should own legal or HR representatives for any advice.

Andy Young

Andy joined Intermedia as Editor of The Shout in 2015, writing news on a daily basis and also writing features for National Liquor News. Now Managing Editor of both The Shout and Bars and Clubs.

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