Home - When is it reasonable to be a Scrooge employer?

UpdatesMar 10, 2022

When is it reasonable to be a Scrooge employer?

Under the Fair Work Act 2009 (Cth) National Employment Standards (NES), an employee is entitled to be absent from their employment on a day or part-day that is a public holiday where the employee is based for work purposes.

An employer may request an employee to work on a public holiday if the request is reasonable. The NES sets out the factors that must be taken into account in determining whether the request is reasonable.

In CFMMEU v OS MCAP Pty Ltd (2022), an employer providing production services to a mining company and was obliged to operate on Christmas Day and Boxing Day. The employer requested its employees work on those days.

The union representing employees working for a mining contractor tried to argue that the word ‘request’ means that even if the employer’s request is reasonable, it cannot operate as a requirement for the employee to work the holiday.

The Court rejected the union’s argument and ruled that if the request was reasonable, it operated as a requirement on the employee to work the public holiday.

The Court stated that the NES creates a prima facie entitlement for employees to be absent from work on a public holiday. It is necessary for the employer to demonstrate adequate reasons why it was reasonable to require employees to work on a public holiday. A strong justification is required for the requirement that employees work on Christmas Day and Boxing Day. The Court considered in this case the request was reasonable because:

Learn more about your obligations and entitlements in relation to public holidays in the Employment Law Practical Handbook chapter, Public Holidays. Look out for this chapter’s next update, which is coming this month!

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