Andrew Lacey
Managing Principal
Litigation and Dispute Resolution
Hiding in plain sight – Supreme Court finds ‘de facto director’ in breach of statutory duties
26 September, 2022
Decision: CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51
An interesting decision from the Full Federal Court was published on 28 March 2023, right in time for the month of April, a month each year where public holidays are prevalent.
This may give employers that operationally require work to be done on public holidays – like, for example, in the hospitality industry, the fast-food industry or the security industry – a jolt of anxiety leading into the Easter break.
Employers must “request” employees to work on public holidays, as opposed to “require” employees to work, absent a request. Many current employer rostering practices may not neatly fit the bill.
Background
On Christmas Day and Boxing Day in 2019, 85 BHP employees at its Daunia coal mine in Queensland’s Bowen Basin worked a standard 12.5 hour shift, and did not receive any additional remuneration for working those days.
Unique to Daunia Mine, its production operations was 24 hours, 365 days a year, which was required to meet its contractual obligations.
Employees’ employment agreements provided a roster pattern of 7 days on, 7 off, 7 nights on, 7 off working 12.5 hour shifts, plus reasonable additional hours, and provided that employees may be required to work on public holidays and payment for that expectation was incorporated into existing remuneration.
Employees were provided with their roster when they first commenced employment, which identified all of the shifts they were required to work, including the public holidays.
In August 2019, management become aware of employees putting in leave applications for Christmas Day and Boxing Day, and as a response, employees were told in September 2019 that only a limited number of employees were able to take leave on those days, and those permitted to take leave were randomly selected.
The legislation
Section 114(1) of the Fair Work Act (FW Act) provides that “An employee is entitled to be absent from his or her employment on a day or part‑day that is a public holiday in the place where the employee is based for work purposes“.
Then s 114(2) provides that “an employer may request an employee to work on a public holiday if the request is reasonable“, and s 114(3) provides that “if an employer requests an employee to work on a public holiday, the employee may refuse the request if the request is not reasonable, or the refusal is reasonable“.
Section 114 of the FW Act is a provision of the National Employment Standards (NES).
At first instance
The primary judge found that it was clear that the employer required its production employees at Daunia Mine to work on Christmas Day and Boxing Day, in management expressly conveying to employees in September 2019, that there was an expectation that employees rostered to work, other than those granted leave, would attend work.
The Union argued that the employer imposed a requirement that the employees work on a public holiday, in contravention of the NES, and specifically, s.114 of the FW Act.
The Union’s case was that a contravention of s 114 will occur where an employer requires an employee to work on a public holiday and has made no reasonable request. There will be no reasonable request “where there is no request at all (but only a requirement); or where a request is made that is not reasonable“.
On the other hand, the employer’s case was that the word “request” is intended to cover a requirement by an employer that its employees work on a public holiday. Such a requirement can be a “request that is reasonable” within s 114(2).
The primary judge correctly identified that the issue between the parties concerned the meaning of “request” in the context of s 114(2), and correctly observed that a “request” leaves the responder with a “choice as to whether or not to do the thing“, whereas a “requirement involves asking or demanding that a person do something in a manner than indicates that there is no option but to comply“.
However, the primary judge did not accept the Union’s construction, finding in the first instance that s 114(2) applies to a “requirement” by an employer that an employee works on a public holiday.
The appeal
The Union’s first ground of appeal (which was ultimately successful) was on the basis that the primary judge erred in determining that the exception under s 114(2) of the FW Act applies where the employer does not request but rather imposes a requirement on an employee to work on a public holiday.
In finding that the primary judge erred in not accepting the Union’s construction, the Full Court did not accept the foundation of the reasoning that the preferred construction of s 114(2) was to ensure the right for employees to be absent from work on a public holiday was balanced by the capacity of employers to require employees to work where that is reasonable – which the primary judge understood would be necessary for critical services (such as police, fire services, ambulance services and at hospitals).
The Court said that outcome follows because an employee must work if the request is reasonable and there is no reason for refusal which is reasonable.
An employer can ultimately require employees to work on public holidays who are involved in critical services or where it is desirable (although “not critical”) to remain open on public holidays in circumstances where the employer has satisfied the obligations imposed upon it under ss 114(2) and (3), namely, that it has made a request, that request is reasonable, and in circumstances where an employee’s refusal is not reasonable.
The Court did not accept that this would be unworkable and mean that an employer could not ever have a roster which included working hours on Christmas holidays or ever have a contractual requirement contemplating work on public holidays.
An employer is able to have a roster which includes public holidays. All that is required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised.
Similarly, an employment contract may contain a provision foreshadowing that an employee may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable.
Confronting any uncertainty that this may create for an employer, the Court noted that an employer is only ever able to demand of its employees what is lawful and reasonable regardless of what a roster or contract says.
It said that, while it may be administratively burdensome for an employer to have to make a request rather than be able to require employees to work on public holidays, the legislation intends to confront that very mischief: To ensure that employers do not so require employees to work on public holidays absent the request being reasonable or the employee being able to refuse to work in reasonable circumstances.
Further, it said that the potential for there to be an absence of employees who volunteer to work on public holidays, is an ordinary predicament for an employer asking employees to work non-standard hours. It is then for the employer to justify why the request is reasonable. If the request is reasonable, then the employee must work unless the employee has a reason for refusal which is reasonable.
Key takeaways
Employers are open to roster employees to work on public holidays. However, employers must be careful that their rostering practices do not amount to “requiring” employees to work, absent a “request”.
Employers should communicate to employees that they have a right under s 114 of the FW Act to refuse to work on a public holiday (if the refusal is reasonable).
Employers should make a request of employees to work on public holidays, prior to any roster being finalised. Practically, this may be via a request for volunteers to work particular public holiday shifts, or via an employee “opt-in” request for particular public holiday work in a rostering period, or perhaps, via obtaining prior employee confirmation that they are available to work on particular public holidays.
Alternatively, where a roster is published prior to any request being made, employers should ensure that employees understand that the roster is in draft and is requesting employees who have been allocated holiday work, that they indicate whether they accept or refuse that allocation.
Contractual terms dealing with public holidays should be drafted in a manner that foreshadows that an employee may be asked to work on public holidays and may be required to do so where the request is reasonable and a refusal unreasonable.
If you require any advice in relation to public holiday obligations, our Employment, Workplace Relations and Safety team at McCabes Lawyers can assist.
