On 28 March 2023, the Full Court of the Federal Court of Australia (FCAFC) handed down the decision of Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd  FCAFC 51. This was an appeal decision from the Federal Court of Australia (FCA) and related to the arrangements of BHP’s in-house labour hire provider (OS MCAP) requiring employees to work on public holidays.
The proceedings concerned the fact that, on Christmas Day and Boxing Day in 2019, a number of OS MCAP employees worked a standard 12.5-hour shift at the Daunia Mine, however did not receive any additional remuneration for this work. These two public holiday days were part of their normal roster, which was a 7 days on, 7 off, 7 nights on, 7 off arrangement.
The CFMMEU contended that, by requiring these employees to work on a public holiday, OS MCAP contravened one of the National Employment Standards (NES), specifically, section 114 of the Fair Work Act 2009 (Cth) (FW Act), that affords employees the protection to not be required to work on a public holiday. Rather than permitting employers to require that employees work on public holidays, this section of the FW Act permits employers to request that an employee work on a public holiday. Pursuant to this section, employees are permitted to refuse the request if it is not reasonable or if the refusal is reasonable. Section 114 of the FW Act sets out various factors to be taken into account in determining whether a request, or a refusal of a request, to work on a public holiday is reasonable.
The FCA decision and the subsequent FCAFC appeal decision hinged on what a “request” must constitute under the FW Act. The FCAFC determined that, in order to comply with the NES, a “request” would be constituted by an employer making a request of an employee in the form of a question, leaving the employee with a choice as to whether or not they will agree or refuse to work on the public holiday. It was held that simply rostering a worker to work on a public holiday is not a request from the employer that the employee work (even in circumstances where that public holiday may fall within their regular roster). It was found that this position would apply even where there is a contract or an enterprise agreement saying the employee is required to work public holidays.
In this case, it was determined that OS MCAP had not requested the employees to work on the public holidays, so was found to have contravened the FW Act, and will be required to pay penalties, which have not yet been determined.
This decision affects any employer who operates on a roster which includes work on public holidays. Until there is a decision from the High Court of Australia (HCA) to the contrary, or the Federal Government changes the wording of the FW Act (which they are unlikely to do unless a decision of this nature were to go through the HCA), the effect of this decision is that all employees who work a roster that would ordinary fall on a public holiday, would need to be expressly “requested” to work, and they may refuse this request.
Not only does the decision raise operational challenges for a variety of employers, the timing of the delivery with the upcoming Easter, ANZAC Day, and Labour Day public holidays means that there is limited time for employers to ensure that their arrangements are compliant.
This article was written by Thea Price, Partner, Erica Hartley, Partner and Anna Stubbersfield, Associate.