In Australia, public holiday obligations are crucial aspects of the employment landscape. Employers and employees must have a clear understanding of the regulations and best practices for managing schedules during these periods.
This article will provide an overview of public holiday entitlements in Australia, particularly in view of the Federal Court decision on 28 March 2023.
Rostering of public holidays thrown into disarray
A decision from the Federal Court on 28 March 2023 has overturned the conventional approach to rostering employees on public holidays. The decision arose out of CFMMEU v OS MCAP Pty Ltd  FCAFC 51.
The impact of the decision on employers rostering employees to work public holidays is immediate and significant.
As a result of the decision, employers must “request” employees work a public holiday before they are required to work the holiday (including by way of a roster). A failure to request that the public holiday be worked (in advance of any direction/requirement to work the holiday) will render the working of the holiday unlawful and in breach of the Fair Work Act.
The principles apply immediately, which means they will affect work over the upcoming long weekends, such as ANZAC Day and Labour day long weekends.
The Full Court found that s114(1) of the Fair Work Act entitles employees to be absent from work on a public holiday. However, the court further noted this entitlement is not applicable where:
- an employer has requested that an employee work the public holiday; and
- the employee agrees to work the holiday; or
- the employee refuses but the refusal is unreasonable (triggering a right for the employer to direct the working of the public holiday).
In either case, the Full Court emphasised that the working of a public holiday can only occur lawfully if the employer has made a request for the holiday to be worked.
The Full Court held there is a difference between requiring an employee to work a public holiday and requesting employees to work a public holiday.
In this case, no request was made so the Full Court held that the FW Act had been breached and referred the matter back to the primary judge to determine the appropriate remedy and penalty.
The effect of the judgment is that no employer can rely upon traditional and ordinary rostering in order to have employees work public holidays. Automated rostering processes do not usually incorporate a request for employees to work, before being expected/required to do so.
Employers will need to introduce some mechanism whereby a request is made to work a public holiday before any direction to work is issued. The Federal Court implied the request could be inserted into the rostering process somehow, through the use of special language.
An employer is able to have a roster which includes public holidays. However, the employer must ensure its employees understand either:
- the roster is in draft requesting those employees who have been allocated to work on the public holiday are to indicate whether they accept or refuse that allocation, or
- where a request is made before the roster is finalised.
Similarly, an employment agreement may contain a provision foreshadowing employees may be asked to work on public holidays where the request is reasonable and a refusal unreasonable.
So, employers relying upon rostering for the upcoming public holidays will need to ensure communications are issued to employees confirming that any roster to work is a request to work that can be refused by the employees (if that refusal is reasonable). The communication should also indicate the roster is, in effect, a draft roster until any responses to the request have been received.
The employers will also need to have some process communicated and implemented for considering and responding to any refusals, once they become known.
Public Holiday Entitlements in Australia
National Employment Standards (NES) public holidays
The National Employment Standards (NES) stipulates the public holidays that all employees in Australia are entitled to – e.g. New Year’s Day, Australia Day, Good Friday, Easter Monday, Anzac Day, the King’s Birthday, Christmas Day, and Boxing Day . Employers need to be aware of these holidays and plan accordingly to ensure employees receive their entitlements and/or the employers are compliant with the new requirement to request employees to work on public holidays.
Differences in entitlements for full-time, part-time, and casual workersPublic holiday entitlements differ depending on the employee’s work status—full-time, part-time, or casual. Full-time and part-time employees are entitled to be paid their base pay rate for the ordinary hours they would typically work if they are absent from work due to a public holiday . Casual employees, however, are not entitled to be paid for public holidays when they are not working.
Regional holidays and their impact on employee schedulesIn addition to the NES public holidays, there are also regional holidays in Australia that may vary by state or territory . Employers need to be aware of these holidays and adjust their employee schedules accordingly. Failing to account for regional holidays may lead to confusion and potential legal issues.
Encouraging open communicationOpen communication between employers and employees is essential when it comes to managing schedules during public holidays. Employers should be approachable and willing to listen to employee concerns or requests for time off. By maintaining open lines of communication, employers can work together with their employees to create a fair and equitable schedule that meets the needs of the business while also accommodating individual preferences and requirements.
ConclusionManaging employee schedules and public holidays in Australia is a critical aspect of maintaining a productive and harmonious workplace. By understanding public holiday entitlements, and fostering open communication, employers can successfully navigate the challenges associated with scheduling employees during public holidays and, in so doing, they ensure their their business continues to operate efficiently and effectively.
NEED MORE INFORMATION?
Akyra is here to help address all your questions and concerns related to the recent changes in public holiday rostering, updating your policies and procedures to stay compliant with these changes, and offering recommendations, advice, and services that will help you ensure your business remains staffed when needed. Please contact Akyra on 07 3204 8830 or book a free 30-minute consultation for an obligation-free conversation.
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.