New Requirement to Seek Consent

The Federal Court has recently handed down a landmark judgement concerning employee consent for public holiday work.[1] Under the National Employment Standards (NES) contained in the Fair Work Act 2009 (Cth) (Fair Work Act), it is now mandatory for employers to seek the consent of their employees before requiring them to work on public holidays. This is regardless of any employment contract, award, or enterprise agreement which may be in place. Employees now also have a right to refuse to public holiday work if they have reasonable circumstances.[2]

Reasonable Circumstances

Factors that influence the reasonableness of an employee’s circumstances include:

  • The nature of the business;
  • Whether the employee is entitled to compensation that reflects an expectation of work on public holidays; and
  • Personal circumstances, such as family and carer responsibilities.

The Nature of a Request

The Court ruled that a roster or previous agreement stipulating that an employee will work on a public holiday does not count as a request. Employers in the hospitality, retail, healthcare, and emergency services sectors should be especially aware of this. An employer will be in breach of the Fair Work Act if they roster an employee on to work a public holiday, without first requesting that they do. Likewise, it is unlawful to require an employee to work on a public holiday if that employee withholds consent in reasonable circumstances.

The recent judgement in OS MCAP is a good example of this situation. The case concerned employment contracts for mining workers which required employees to work on public holidays. Employees were expected to work under a roster requiring 7 days on work and 7 days off. Rosters were provided to employees at the beginning of their contracts and specified all shifts, including public holidays, that they were expected to work. Employees did not receive additional remuneration for working public holidays. The employer informed employees that they could request leave after a discussion with their line leader if they had “special circumstances” or needed to take time off. However, not all employees would be granted leave as there was a minimum number of employees required to work each day.

In these circumstances, the Court found that because the employer never made a request to the employees whether they would be willing to work on Christmas Day or Boxing Day, and instead made it obligatory, the employer contravened the NES. The Court explained that “the requirement that there be a ‘request’ rather than a unilateral command prompts the capacity for discussion, negotiation, and a refusal.”

Key Conclusions

As the Federal Court ruling will impact all public holidays, employers must instal processes for requesting the consent of their workers to work on public holidays before they release any roster or make any obligations. We encourage employers to communicate to their employees that they can refuse to work if reasonable circumstances prevail and enter discussions regarding individual working arrangements. Early, good faith discussions between employers and employees are the best course for navigating these changes.

If, at any point, you would like guidance on how best to adhere to these new public holiday requirements under the NES, please do not hesitate to reach out to Daniel Morgan (daniel@morganenglish.com.au) and the Workplace team at M+E today.

[1] Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (OS MCAP).

[2] Fair Work Act 2009 s 114(1).

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