New rules all about 'reasonable' requests, say 2 employment lawyers
Employers have lost the right to arbitrarily schedule employees to work on public holidays.
A recent Federal Court decision ruled that employers must make a “reasonable request” and “ask” if the employee wants to work on a public holiday, and the employee must be given the opportunity to respond.
Employers who fail to make a reasonable request risk violating the National Employment Standards (NES) and section 114 of the Fair Work Act 2009 (Cth).
“The Fair Work Act 2009 entitles employees to a paid day away from work on public holidays,” Antonia Tahhan, associate Chamberlains, said. “However, pursuant to section 114(2) of the FWA, an employer can ‘request’ an employee to work a public holiday where reasonable.”
Whether the request should be interpretated as “requirement” was recently deliberated by the courts in the Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd case. This case confirmed that employers cannot automatically schedule employees to work on public holidays as the court confirmed a request should be made in the form of a question — leaving the choice to work open to the employee, she said.
The court confirmed that the request is an intention to prompt a discussion as opposed to a unilateral demand.
“The court’s interpretation, however, still reinforced that an employer involved in critical services, or where it is desirable for the business to remain open, can require employees to work on public holidays as long as the employer has made a request for an employee to work on a public holiday; that request is reasonable; and the request is made in circumstances where an employee's refusal is not reasonable,” Tahhan said.
It has becoming increasingly common for employers to allow employees to work on public holidays such as Australia Day, but employers can no longer demand or simply schedule an employee on that day without their consent.
Furthermore, employers will need to ensure that even if an employee does consent to work on a public holiday, all work health and safety issues are in place.
The Fair Work Act 2009 sets out a range of factors that must be considered in deciding whether the employer’s request is reasonable, and whether an employee’s refusal to work is reasonable, Joellen Munton, executive counsel at Harmers Workplace Lawyers, said.
“An employer’s request will be reasonable if the nature of the work and the enterprise requires work to be done on public holidays.”
It is reasonable, for example, that an emergency medical facility requires staff to work on public holidays, she said. Factories that require machinery to operate 24/7 will also have a legitimate reason for requesting that staff work.
“The employer also needs to consider the personal circumstances of particular employees, such as their family responsibilities. The terms and conditions of the job are also relevant. A request is more likely to be reasonable if the employee will be entitled to be paid penalty rates, or if their salary level already contemplates requirements to work unsociable hours.
“Employers are also expected to give reasonable notice of the need for work to be done on public holidays.”
In a landmark decision, the Federal Court of Australia recently ruled that employers cannot mandate employees to work on public holidays without first seeking their consent — even if their employment contracts or enterprise agreements stipulate they should.
An employee has the right to refuse working on a public holiday if it is not deemed essential or urgent — but that again will depend on the nature of the work and the industry in which the company operates.
“It is very fact-dependent whether an employee’s refusal will be reasonable,” Munton said. “All of the factors are weighed in the balance. If the work is not essential, the employee will not be paid for the additional work, and the employee has competing family demands, it is likely that any decision to punish the worker for refusing to work on a public holiday will be a breach of the general protections in the Fair Work Act 2009 (Cth).”
Employers should always be mindful of their responsibilities under the Fair Work Act 2009, the work health and safety legislation in the relevant state, and the anti-discrimination legislation, at both state and federal levels, she said.
“All of these create rights for employees to safe working conditions, free of discriminatory treatment, and may give rise to a complaint if an employees’ circumstances are disregarded in decisions about rostering on public holidays.”
Section 114(4) of the FWA outlines what is considered when determining both whether an employer’s request and an employee’s refusal are reasonable. This will depend on factors including:
