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High Court Confirms Employers Must Request, Not Direct, Work On Public Holidays


The High Court of Australia has delivered a decisive verdict, fundamentally altering the landscape for employers. The ruling, stemming from the case of Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, solidifies that employers must formally request employees to work on public holidays, setting a precedent with significant consequences for businesses.

Formal request to work on public holidays

Last year, the Federal Court of Australia clarified that employers must formally request employees to work on public holidays. This Decision arose after BHP’s in-house labour hire provider OS MCAP Pty Ltd was accused of contravening the National Employment Standards (NES) by requiring employees to work on Christmas Day and Boxing Day in 2019.

The Full Court’s decision established that for an employee to be obliged to work on a public holiday the employer must make a reasonable request and that any refusal by the employee must be unreasonable. Employers are now obligated to review their practices, ensuring that employees are aware of their right to refuse public holiday shifts. This includes incorporating penalties for working on public holidays into the request, potentially increasing the likelihood of employee acceptance.

Following the Full Court ruling, BHP sought special leave from the High Court to challenge the decision. Despite attempts by BHP to challenge the Full Court’s decision, the High Court justices, Michelle Gordon and Robert Beech-Jones, rejected the special leave request. Consequently, the High Court also reaffirmed the Full Court’s interpretation, stating that a “request” under s114(2) of the Fair Work Act connotes its ordinary meaning, giving employees the choice to agree or refuse to work on a public holiday. The court emphasized the need for discussion and negotiation, allowing employers to require employees to work on a public holiday only if the request is reasonable and the employee’s refusal is unreasonable.

A transparent approach

Employers must now be diligent in formally requesting employees to work on these days, ensuring transparency and openness in the process. Failure to comply with this requirement may lead to legal consequences, as highlighted by the CFMMEU’s claim against BHP for allegedly flawed leave deductions, potentially resulting in over $400 million in backpay to employees.

As Easter, Anzac Day and Labour Day public holidays are approaching, employers are also urged to undertake a comprehensive review of their employment practices, specifically scrutinizing employment contracts and policies to ensure compliance with legislative requirements. Businesses should consider promptly implementing new policies governing the process of requesting and refusing work on public holidays.

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Written by
Sandy Suliman
Sandy uses her expertise in workplace relations systems, and her ability to think strategically through complex issues, to build conducive relationships with clients and key partners.