5 Steps to Plan Your Public Holiday Rostering
Easter is almost here, which means there are a number of public holidays coming up over the next few months. Now is an important time for employers to ensure they are planning how to roster employees on during these public holidays, if this is required to meet their operational requirements.
The outcome of a recent Federal Court decision has led to some significant changes concerning employer/employee obligations, namely that employers can no longer simply roster employees to work on public holidays and require those employees to fulfil that roster.
Employers now need to ‘request’ employees to work the rostered hours BEFORE that roster is confirmed, and to take into consideration the circumstances where an employee refuses a request work.
To help avoid confusion about employer and employee obligations on public holidays, this week’s blog outlines the relevant legislation, and explains recent changes which may impact how you approach rostering on public holidays.
Working on a Public Holiday – The Legislation
Permanent employees are entitled to be absent on a public holiday. However, an employer may request an employee to work on a public holiday if the request is reasonable. At the same time, the employee can refuse the request where the request is not reasonable – or if the employee’s basis for refusal is reasonable.
Points for an employer to consider when assessing the reasonableness of a request or a refusal can include:
- the nature of the operational requirements of the workplace and the nature of the work;
- the employee’s personal circumstances, including family responsibilities;
- whether the employee reasonably expects that the employer might request they work on the public holiday;
- the type of employment (full time, part time, casual or shiftwork);
- the notice given by the employer when making a request;
- if refused by the employee – the notice given by the employee to the employer; and
- any other relevant matter.
Previous Practice of Employers for Public Holiday Work
Until recently, common employer practice regarding public holidays was to:
- inform employees (usually as a condition of their employment) that they were required to work on public holidays as rostered; and
- roster employees to work on public holidays, with no real option to refuse other than applying for leave.
However, a recent Federal Court decision (the OS MCAP Decision) has turned this practice on its head.
The OS MCACP Decision
OS MCAP Pty Ltd entered into a contract to provide its client with production services on a 24/7 basis. In relation to work on public holidays, OS MCAP had:
- engaged employees under a standard form contract (foreshadowing employees “may” be required to work on public holidays and receive no additional remuneration);
- provided employees with a laminated card containing their shift schedule, encompassing both seven days on and seven days off rotations including public holidays they would be obliged to work;
- provided an orientation session for new hires with a PowerPoint presentation stating employees were “scheduled to work 24/7, 365 days a year,” which included all public holidays;
- informed employees in a meeting they would be assigned to work on Christmas Day and Boxing Day and no further requests were being accepted, unless already approved for special circumstances; and
- approved certain employees’ public holiday leave applications through a random selection process of names with the assurance that, in future years, they would call for expressions of interest from employees to not work on public holidays.
Simply put, it was assumed that employees would work on public holidays as rostered, unless leave was approved.
What Does This Mean for Employers?
The Full Federal Court considered what an employer must do to make a request to work for the purposes of Section 114(2) of the Fair Work Act, and whether OS MCAP had fulfilled these requirements.
The Court decided that such a ‘request’ must be in the form of a question, ‘leaving the employee with a choice as to whether he or she will agree or refuse to work on the public holiday’.
By ‘requiring’ employees to work on a public holiday, OS MCAP was found to have breached Section 114 of the Fair Work Act regarding public holiday work. The Full Federal Court said section 114 was intended to level up the inherent power imbalance between employers and employees in relation to work on public holidays and ensure employees could reasonably refuse to work public holidays in certain circumstances.
Nevertheless, the Full Court accepted it is still possible, according to section 114 of the Fair Work Act, to effectively ‘require’ an employee to work on a public holiday (e.g. in safety critical industries or even where it is a preferred business model with 24/7 work).
The Full Court held that if an employer presents a reasonable request for an employee to work on a public holiday, and this request allows for negotiation and discussion, the employee is obligated to work unless they hold a reasonable justification for refusal.
Steps for Employers to Ensure Compliance
Employers should ensure they request employees to work on a public holiday and allow employees to refuse if that is reasonable.
Under the Fair Work Act, an employer (manager) who does not comply with this section risks significant civil penalties of up to $469,500 per contravention for companies who are not small businesses (recently increased); small businesses remains at up to $93,900; and $18,780 per contravention for an individual.
Steps an employer can take to comply with the legislation there is a requirement for employees to work on public holidays include:
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- Employers (managers) should expressly ‘request’ employees work upcoming public holidays with as much notice as possible.
Ways in which this could be done:
- Send a draft roster to employees with a note requesting the employee to work the public holidays in the relevant roster. The employee should respond to the employer accepting the request or advising any reason why they might reasonably refuse to work on those days.
- The request could be made in the month leading up to the public holiday, quarterly, or every six months. However it happens, the request should be made as soon as work hours and public holidays are known – e.g. in a recent case (Aurizon Operations Case), six weeks was considered reasonable notice.
- The list of what should be considered in considering an employee’s refusal is detailed Points for an employer to consider when assessing the reasonableness of a request or a refusal. In the Aurizon Operations Case, an employee refusal based on briefly outlined religious/family reasons (Christmas having ‘important family and religious days’) did not outweigh the operational/supply chain needs of the 24/7 business environment, noting the employee was well remunerated for public holiday work and provided with sufficient notice.
- Consider implementing a policy/guide/procedure regarding public holiday work which includes:
- the needs of the workplace (e.g. 7-day shift work to meet the needs of clients/customers);
- how and when employees should inform employers of their “refusal” to work the public holiday (so the employer can make alternative arrangements if necessary);
- what information and supporting evidence an employee can provide to support their refusal (noting the FW Act does not contain any requirement for an employee provide such evidence);
- the factors set out in section 114(4) of the FW Act the employer will apply in determining whether any refusal to work the request is reasonable;
- details of how employees will be remunerated for working a public holiday (if this information is not set out elsewhere, e.g. in the employee’s contract of employment or enterprise agreement – see below Step 4), and any impact on annual leave accruals (see below Step 5).
- Review employment agreements. These should include clauses in which the employee agrees that:
- they may (or will) be requested to work on public holidays from time to time due to business needs; and
- where provided with a roster which includes work on a public holiday, the roster is a ‘request’ to work on those particular public holidays and an employee may reasonably refuse depending on the circumstances.
The employment agreement should also contain a provision specifically dealing with pay if an employee works on a public holiday and any impact on annual leave accrual (see below Steps 4 and 5).
Any ‘blanket’ request to work public holidays in an employment contract is likely to be found non-compliant.
- Revisit how salaries are calculated.
Annual salaries are usually calculated to account for work on public holidays. While this may weigh in favour of a request being ‘reasonable’, it will not be determinative.
On this basis, the way in which salaries should be assessed to determine whether changes need to be made (either in the short or long term when agreements/contracts are updated or renewed). Those calculations could:
- include a component for a stated number of public holidays being worked per annum and consider what, if anything, will happen if the employee does not work the stated number of public holidays; or
- pay an additional amount for working on a public holiday which may have the effect of discouraging employees from refusing to work.
Ensure clauses dealing with work on public holidays in employment agreements or enterprise agreements reflect the terms of the legislation; noting legislative provisions will always take precedence over terms and conditions in an employment agreement or enterprise agreement.
- Inform employees if there is any impact on annual leave accrual.
For example, a shift worker receives an additional week of annual leave as they are required to work a certain number of public holidays (detailed under the relevant award, enterprise agreement or the FW Act/IR Act for award-free employees).
With thanks to HopgoodGanim Lawyers for this information.
Key Takeaways
- With a number of public holidays on the horizon, now is an important time for employers and managers to plan rostering arrangements – and to ensure these arrangements comply with the relevant legislation.
- A recent Federal Court decision means that employers can no longer roster employees on public holidays and simply expect them to fulfil that roster.
- Employers must now ‘request’ employees to work the rostered hours before that roster is confirmed – and carefully consider the circumstances where an employee does not wish to work.
Our team here at Akyra can advise employers about compliance with regulation, optimising workforce engagement and mitigating risk of non-compliance. Contact the team at Akyra today for an obligation-free discussion.
Disclaimer – Reliance on Content
The material distributed is general information only. The information supplied is not intended to be legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.
