A recent Federal Court decision on 28 March 2023 has altered the traditional approach to employees being rostered to work public holidays. It has been common practice in many industries, particularly in retail, manufacturing and coal services, for employees to work public holidays.
However, the decision of CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51 now requires “employers to request an employee to work a public holiday before they are required to work the holiday, including via a roster arrangement.” A failure to “request” that a public holiday be worked in advance of the requirement to work the public holiday will be regarded as a breach of section 114(2) of the Fair Work Act (“the Act”) with penalties to apply to employers who breach the Act.
The case in focus pertained to employees who were rostered to work on Christmas and Boxing Day. The employees worked at a mine which was in operation for 365 days a year and worked on 7 days on and off rotating roster. The employees were advised that those rostered onto work were required to attend, unless they could provide evidence of special circumstances. Only 10% of the requests for special circumstances were granted, with the remainder of the rostered employees required to work.
The case will have a profound effect on many industries, with employers no longer able to expect employees to work on public holidays but are now required to request and consult with employees before scheduling them to work on public holidays.
Our employment team at Baker Love Lawyers will ensure that you are provided with tailored legal advice to ensure that your business is functioning within the ambit of the law. Please contact our team at Baker Love Lawyers on (02) 4944 3322.
