19 April 2023
Many employers put in place rosters for employees to cover work on public holidays, particularly on dairies where daily milkings are essential.
However, a recent decision of the Federal Court has placed a new interpretation on how an employer can have an employee work on a public holiday. This is now the determined law, that is, it applies to work over the Easter long weekend.
The Fair Work Act states that employees are entitled to be absent from work on public holidays. The Federal Court has interpreted the provisions of the Act dealing with public holidays to mean that the employer can only ‘request’ an employee to work on a public holiday, they cannot ‘require’ the employee to work, even by putting in place a roster.
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This then means that the employee can refuse the request, and not work as desired.
It is important that employees otherwise rostered to work are advised as soon as possible that the roster is a request for them to work that can be refused by the employee if they so desire. However, if they refuse the request as an employer you are entitled to ask why, and if the refusal to work is unreasonable then the employer can direct the employee to work.
The Fair Work Act sets out a number of conditions that show whether the request is reasonable or not and then whether a refusal is unreasonable. These include the nature of the workplace and the type of work that is performed, whether the employee could reasonably expect the employer to ask them to work on a public holiday, the amount of notice the employer gives to the employee when requesting the public holiday work, and whether working on a public holiday has been considered in setting the employee’s wage or salary.
In looking at the employee’s refusal then the employer needs to accept that the employee may have family responsibilities, that there are health and safety issues, and the nature of the employee’s role.
Each business is different and the points raised above should be carefully considered when looking at employees working on a public holiday.
If you have any queries, please contact Andrew Cameron as set out below
Andrew Cameron | Workplace Relations Director
Mobile: 0407 200 909
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