In a recent landmark decision concerning BHP’s in-house labour hire company, a significant revelation has been made about the process of rostering employees to work on public holidays. This decision, arising from the case CFMMEU v OS MCAP Pty Ltd, underscores the importance of how employers approach the scheduling of their workforce during public holidays.
The Federal Court ruled that employers must take a different approach when it comes to assigning employees to work on public holidays. Instead of making unilateral decisions, employers are now required to formally request employees to work on these specific days. This change stems from section 114(2) of the Fair Work Act, which states that “an employer may request an employee to work on a public holiday if the request is reasonable.”
Crucially, the court interpreted the term ‘request’ in section 114(2) as implying a specific ask in the form of a question, giving employees the option to agree or refuse to work on the public holiday. According to section 114(3), employees have the right to refuse the request if it is deemed unreasonable, or if the employee’s refusal is considered reasonable.
Section 114(4) outlines several criteria that should be taken into consideration when determining the reasonableness of the request or refusal. These factors include the nature of the workplace, the employee’s role and type of work, personal circumstances, employment status, the employee’s reasonable expectations regarding public holiday work, compensation considerations, notice provided by the employer, and any other relevant factors.
The practical implication of this decision is that the National Employment Standards (NES) establishes that employers cannot unilaterally instruct or roster employees to work on a public holiday without first making a specific request. This nuanced approach allows for communication, discussion, and negotiation on the matter, promoting a fairer and more collaborative working environment.
Important considerations for the upcoming holiday
With an upcoming public holiday on the horizon, it is crucial for business owners to be aware of these legal nuances when managing their workforce. Here are some key tips to navigate public holiday rosters effectively:
Early communication – Initiate conversations with your employees well in advance of the upcoming public holiday. Clearly communicate your expectations and inquire about their availability.
Flexible scheduling – Consider implementing flexible scheduling options, such as voluntary sign-ups or rotating shifts, to accommodate both business needs and employee preferences.
Transparency in policies – Ensure that your business policies regarding public holiday work are transparent and easily accessible to all employees. This can prevent misunderstandings and facilitate compliance.
Fair compensation – Clearly outline the compensation structure for employees working on public holidays. Be mindful of legal requirements and ensure that your approach aligns with the Fair Work Act.
Employee feedback – Encourage feedback from your employees regarding public holiday rosters. This can provide valuable insights into the practicality and reasonableness of scheduling arrangements.
As business owners navigate the complexities of public holiday rosters, staying informed, fostering open communication, and reviewing and adjusting policies will contribute to a smoother process. By incorporating these key tips, you can create a working environment that balances operational needs with employee wellbeing and legal compliance.
Get in touch with our team if you’d like support navigating public holiday rosters. Find our articles helpful? Remember to follow us on Facebook, Instagram or LinkedIn to keep up to date with our practical tips and information for business owners and managers.