Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51
This case concerned 85 employees from OS MCAP Pty Ltd (the Employer) who worked a standard 12.5-hour shift at the Daunia Mine in Queensland on Christmas Day and Boxing Day in 2019. These two public holidays were part of the employees’ normal roster, but they did not receive any additional remuneration for working on these two days.
The CFMMEU (Appellant) contended that, by requiring the relevant employees to work on a public holiday, the Employer had contravened the National Employment Standards under the FW Act, particularly section 114 of the FW Act.
Under section 114, an employee is entitled to be absent from their employment on a public holiday, but an employer can request the employee to work on a public holiday if the request is reasonable. However, an employee can refuse the request to work on a public holiday if the request is not reasonable, or the refusal is reasonable.
The question before the Full Court of the Federal Court (Full Court) was what constitutes a ‘request’ under the FW Act.
In the Full Court’s view, a ‘request’ within the meaning of the FW Act connotes its ordinary meaning – an employer may make a request of employees in the form of a question, leaving the employee with a choice as to whether they will agree or refuse to work on the public holiday. After discussion or negotiation, the employer may then require the employee to work if the request is reasonable and the employee’s refusal is unreasonable. Simply rostering an employee to work on a public holiday is not a request from the employer that the employee work, even if the public holidays falls within the employee’s regular roster.
The Full Court also specified that this applies even where there is an enterprise agreement or contract in place that says the employee is required to work on public holidays.
The Full Court ultimately determined that the Respondent had not requested the employees to work on the public holidays and therefore contravened the FW Act, overturning the primary judge’s decision at first instance. The case has been remitted to the primary judge for determination on the questions of remedy and penalty.
Ensuring compliance with the FW Act
The decision has clarified that employers must ensure they expressly request employees to work on public holidays, even if the public holidays form part of the employer’s usual roster, in order to comply with the FW Act.
Employers should keep in mind that if an employee refuses to work on a public holiday, the refusal is only valid if the employer’s request is unreasonable, or the employee’s refusal is reasonable.
With ANZAC Day on the horizon, and further public holidays later this year, employers should take active steps as soon as possible to demonstrate compliance with section 114 of the FW Act.
Get in touch
For further advice on the Full Court’s decision, or assistance with complying with the FW Act, contact our Workplace Relations team.
