A recent ruling of the full bench of the Federal Court in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd (No 2) [2022] FCA 132 held that BHP’s internal labour hire outfit, Operations Services, breached the Fair Work Act 2006 (FW Act) by requiring miners to work on Christmas Day and Boxing Day in 2019. This landmark decision has reiterated the requirement for Employers to consult with their employees before rostering them to work on public holidays without any exceptions.
With the Easter holidays approaching, many employers in industries such as hospitality, retail, aged care, mining and others need a steady workforce during the public holidays. So what does this ruling mean for these industries?
Section 114(2) of the FW Act permits an Employer to request an Employee to work on a public holiday. s114(3) of the FW Act provides for when a request from an Employer or Employee may be refused by each other on reasonable grounds.
The use of the term “request” imposes a liability on the Employer to consult with the Employee before requiring them to work on a public holiday. An Employer is expected to afford the employee a genuine opportunity to refuse or accept the request to work on a public holiday. However, the refusal under these circumstances, by either party, must be justified.
The duty to consult also applies where there is a contract of employment that clearly stipulates an expectation to work on public holidays.
What should Employers do?
Where workers are needed on public holidays, it is necessary for Employers to follow a consultative approach with employees who are required to work. Ultimately, after discussion or consultation, the Employer would still be able to require an employee to work on a public holiday if the request is considered reasonable and the Employee’s refusal is considered unreasonable.
Employers who overlook the consultation requirement and merely direct or inform their Employees to work on public holidays without affording the Employees a real opportunity to accept or refuse on reasonable grounds could be considered as robbing the Employees of a National Employment Standard and contravening s44 of the FW Act. Such a contravention attracts civil penalties.
There is no denying that there is a level of complexity attached to this requirement in practice and there is room to reconsider current workplace practices for Employers to ensure compliance with the various workplace laws and avoid the risk of exposure to civil penalties.
Contact our Employment and Workplace Relations team here at MBA Lawyers to evaluate your workplace practices and policies in light of this recent judgement, especially if your business demands employing the workforce all year round. Call us today on 07 3211 8644.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any specific entity or individual. Although MBA Lawyers endeavours to provide accurate and timely information, no guarantee is provided that the information is accurate at the date it was published or that it will continue to be accurate in the future.