As public holidays approach with Easter right around the corner and Anzac Day not too far away, it is important to remain informed about the rules and legislation about requiring staff to work on public holidays.
The Legislation
The Full Federal Court’s landmark ruling in CFMMEU v OS MCAP [2023] FCAFC 51 confirmed that:
- Employers must formally request employees to work on public holidays (not just demand or expect them to).
- Publishing a roster and allocating a shift to an employee will only be viewed as a “request” to work.
- Employees have the right to reasonably refuse requests to work on public holidays under section 114 of the Fair Work Act 2009.
Penalties & Risks
Non – compliance with s 1114 of the Fair Work Act can bring the following consequences:
- Breaches of the National Employment Standards (NES).
- Penalty risk orders and fines.
- Employee grievances and disputes.
- Reputational damage.
How to Approach Rostering as an Employer
The following are recommendations to ensure that you are following legislative requirements and are openly communicating with your staff.
Early Notice –
Communicate as soon as possible to staff about any upcoming public holidays, and start to consider availability and preferences, as well as award conditions and operational needs of your staff.
Publish a ‘Draft’ Roster –
Publish a ‘draft’ roster with reasonable notice, such as 2 – 4 weeks in advance, so staff can evaluate if they are or aren’t available for a shift. As the public holiday gets closer, a finalised version can then be published after review.
Allow Staff to Volunteer to Work –
Seek out staff by asking who would like to work public holidays instead of assuming people would.
Log Communication –
Ensure written records of communication are kept to avoid any ambiguity and the potential of legal, problematic issues.
Handle Refusals Considerately –
Carefully evaluate each refusal and consider the nature of the work; personal / family circumstances; the timing in which you’ve given the request; applicable penalty rates and type of employment.
For more information about requesting employees to work on public holidays, contact HumanKapital for advice and assistance via the link below.