Public Holiday Compliance confirmed by High Court

Last week the High Court confirmed that employees must be given a choice as to whether they will agree or refuse to work on a public holiday. This now settles the law in this area.

The High Court endorsed the earlier decision of the Full Federal Court (referred to in our earlier article on 4 April) and as a result an employer who fails to genuinely request an employee to work on a public holiday before imposing a requirement will be in breach of the NES. This requirement applies even if employees have been rostered to work the public holiday. Notably the decision still permits an employer to request that an employee work on a public holiday, however that request can be refused by an employee if it is not reasonable or refusal is reasonable.

Recommended steps

To this end, we recommend that employers take the following steps when a public holiday is approaching:

Step 1 (Request) – issue a request that employees work on specific public holidays, with an invitation to respond with any personal reasons as to why the employer’s request isn’t accepted. This could be in the form of an indicative draft roster or written request to work on a public holiday.

Step 2 (Employee Response) – the employee then either accepts or refuses the request (including providing any personal reasons why the request isn’t accepted).

Step 3 (Consideration of Response) - consider whether having regard to a range of factors, as well as the employee’s reasons for refusal to work on a public holiday, it is still reasonable to require the employee to work on the public holiday.

Step 4 (Check Modern Award / Enterprise Agreement or Contract) – if there is a term that states a requirement to work on public holidays, this will be relevant but not decisive as to whether the request is reasonable.

Step 5 (Tell the Employee) – having considered the relevant factors, communicate the final decision to the employees. This may be challengeable.

As a starting point in this process, we have prepared a letter for retainer clients only attaching an indicative roster and requesting that employees work on the upcoming public holidays over Christmas and the New Year. We've also prepared a response letter denying on reasonable grounds the employees' refusal which (if applicable) must be tailored to suit individual circumstances.

What factors need to be considered?

Factors that are relevant to whether a request or refusal is reasonable include (section 114 Fair Work Act):

1. the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

2. the employee’s personal circumstances, including family responsibilities;

3. whether the employee could reasonably expect that the employer might request work on the public holiday. A positive obligation in a modern award, enterprise agreement or employment contract will be relevant but not decisive;

4. whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;

5. the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);

6. the amount of notice in advance of the public holiday given by the employer when making the request;

7. in relation to the refusal of a request - the amount of notice in advance of the public holiday given by the employee when refusing the request; and

8. any other relevant matter.

Please reach out for any specific advice that you require.

Edge Legal

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