Will your business require employees to conduct work for you on the public holidays over Easter? If so, a recent ruling in the Federal Court is a timely reminder of what rights you and your employees have when it comes to requests (or demands) to work on public holidays.

In Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd (2023), the Full Federal Court found that an employer, OS MCAP, had unlawfully required its employees to work on a public holiday in contravention of section 114 of the Fair Work Act 2009 (Cth) (FW Act).

Section 114 of the FW Act enables an employer to request an employee to work on a public holiday if the request is reasonable. An employee may only refuse the request if the request was not reasonable or the employee’s refusal is reasonable.

The Court said that under section 114 of the FW Act, an employee is entitled to be absent from their employment for a day or part day that is a public holiday. An employee can be requested to work on a public holiday only if the request is reasonable or the employee’s refusal is not reasonable.

The Court said a ‘request’ cannot be interpreted as “comprising a demand or making something obligatory”, as that was not what was intended by the FW Act. Instead, employees must be given a choice on whether they will agree or refuse to work on a public holiday and consulted about working on public holidays.

The Court disagreed with the employer’s view that such an interpretation of section 114 of the FW Act would mean that an employer could never have a roster that included working hours on a public holiday. The Court said an employer can have a roster which included public holidays, and, “all that is required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised. Similarly, a contract may contain a provision foreshadowing that the employees may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable.”

The Court acknowledged that it may be administratively burdensome for employers like OS MCAP to have to make a request rather than be able to require its employees to work on public holidays. However, the Court said the whole purpose of the FW Act is to ensure that employers do not require employees to work on public holidays unless the request is reasonable and the employee is able to refuse to work in reasonable circumstances.