Most Australian workers look forward to taking public holidays off, especially around Christmas. But what happens to companies that operate year-round, requiring employees on public holidays? The right to enjoy public holidays is protected under the Fair Work Act 2009 (Cth) National Employment Standards. Employees are afforded time off on public holidays in their geographical location unless there is a reasonable requirement for an employee to work on a public holiday.

The National Employment Standards outlines what is deemed a ‘reasonable’ request. Such standards were challenged in CFMMEU v OS MCAP Pty Ltd (2022), where the Federal Court’s conclusion on reasonableness provides further clarification on requirements to work on public holidays.

The respondent, OS MCAP, provides mining services to Daunia Mine. The mine operates 365 days a year, requiring employees to work on public holidays, including Christmas Day and Boxing Day, where their work roster falls on these holidays. Employees were made aware of this requirement before the onboarding process. They were paid annualised salaries that compensated them for working on public holidays and paid them above the award rate.

The appellant, CFMMEU, argued that OS MCAP violated s44 of the Fair Work Act by contravening the National Employment Standards in s114 of the Fair Work Act, requiring employees to work on Christmas Day and Boxing Day. CFMMEU argued that this request was unreasonable and that the word ‘request’ could not operate as a requirement to work on a public holiday.

S 114 (4) of the Fair Work Act requires the court to consider the amount of notice given in advance of the requirement to work on a public holiday, the nature of the work and type of employment, and if the employee could reasonably expect to be required on a public holiday, amongst other factors.

The Federal Court dismissed the appeal, finding that there was an ‘operational need’ for employees to work on public holidays and that this request was reasonable. The court stated that OS MCAP demonstrated an operational requirement to work on Christmas Day and Boxing Day a
nd that employees were made aware of this requirement before commencing employment. Employees whose work roster fell on Christmas and Boxing Day were reminded of the condition before the holidays and allowed to apply for leave or make alternative arrangements. Further, it was found that the annualised salary adequately met the penalty rates for the employee’s award.

The decision in CFMMEU v OS MCAP Pty Ltd (2022) gives further meaning to the National Employment Standards set out in s114 of the Fair Work Act 2009 (Cth), elucidating the definition of ‘operational need’. This provides employers with further clarification on when it is appropriate to require employees to work on a public holiday and how this requirement should be enforced


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