On 28 March 2023, the Federal Court ruled in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 that employers must notify employees that they “have the option to either accept or reject a request to work on a public holiday.” This judgement was made against OS MCAP Pty Ltd for being unreasonable and unlawful for requiring 85 mineworkers to work on Christmas Day and Boxing Day in 2019.

Why was this decision made?

In CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51, the Federal Court ruled that OS MCAP Pty Ltd were in breach of section 114 of the Fair Work Act 2009 (Cth).

Section 114 asserts that “if an employer requests an employee to work on a public holiday, the employee may refuse the request if:

                     (a)  the request is not reasonable; or

                     (b)  the refusal is reasonable.”

Although OS MCAP Pty Ltd contended that they were not breaching s114 as an employee’s refusal is contingent on a request and not a requirement, this submission was dismissed by the Court. The Court determined that OS MCAP Pty Ltd “was not permitted to require employees to work on Christmas and Boxing Day, unless, as the Union submitted, it had made a [reasonable] request.” As such, “given a requirement does not comprise a request” and OS MCAP Pty Ltd admitted they “did not make a request in the ordinary sense,” the Court ruled that the company had breached the Fair Work Act 2009 (Cth).

The Court therefore ruled that OS MCAP Pty Ltd contravened s114 because the company did not inform its employees that they were allowed to object working on Christmas Day and Boxing Day if their refusal was reasonable.

How does this decision impact rostering of employees on public holidays?

As a result of this decision, employers must be cautious when using automatic rostering software. Automatic rostering precludes employees from choosing “whether he or she will agree or refuse to work on the public holiday”.

An employer must frame their request for an employee to work on a public holiday in the form of a question to which the employee can then respond. It is only after discussion or negotiation that an employer may “require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable”.

What should I do if my employer has requested I work on a public holiday?

If your employer has requested that you work on a public holiday, it is prudent that you know what constitutes a reasonable request.

The National Employment Standards stipulate that the following conditions should be considered when determining if an employer’s request is reasonable:

  • the nature of the workplace
  • the role and type of work of the employee does
  • employee’s personal circumstances (including caring responsibilities)
  • employment status (full-time, part-time or casual)
  • an expectation that they might be asked to work on the public holiday
  • any overtime, penalty rates or other payment the employee might receive.

It is important to note that if you are working in the emergency services, you may be required to work on public holidays. In these instances, employers must ensure that they make a reasonable request and only roster employees if they have not provided a reasonable refusal.

For more information about your entitlements such as pay and leave when working, or not working, on a public holiday, please refer to the Fair Work Ombudsman website or seek legal advice.

Contact Us

If you believe your employer is not complying with The Fair Work Act 2009 (Cth) or the National Employment Standards, it is best to seek professional legal advice. If you would like to discuss your employment matter with a legal professional, please contact us on (02) 9963 9800 or at [email protected]