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Federal Court ruling on public holiday NES flows through to enterprise agreement approvals

The National Employment Standards (NES) in the Fair Work Act 2009 (Cth) provide that an employee is entitled to be absent from their employment on a public holiday. However, an employer may request an employee to work on a public holiday if the request is reasonable. 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.

The NES set out certain matters that will be taken into account in determining reasonableness, including:

  • the nature of the employer’s business;
  • the employee’s personal circumstances, including family responsibilities; and
  • whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday.

The Full Federal Court decision in CFMMEU v OS MCAP Pty Ltd (2023) dealt with a case where employment contracts required employees to work on public holidays. Rosters were provided to employees when they first commenced employment, which identified all shifts including public holidays they would be required to work.

After leave applications for Christmas Day or Boxing Day were received, meetings were convened in which employees were told the employer could accommodate six employees for each roster panel being absent from work on Christmas Day and Boxing Day.

A random selection process would be used to select those who could take the Christmas/Boxing Day leave, with employees being told they “will not be able to have XMAS off again for 2 yrs”.

Later, employees were informed that the employer could increase the employee leave allocations for Christmas Day and Boxing Day, with employees being informed they could be considered for leave after discussion with their line leader if they had “special circumstances” or needed to take time off.

One employee did not make any request to be absent on Christmas Day or Boxing Day since he understood it would be rejected.

The Court ruled that because the employer never made a request of its employees whether they would be willing to work on Christmas Day or Boxing Day, and simply made it obligatory, the employer had contravened the NES.

The Fair Work Commission (FWC) had to deal with these issues in a recent decision for approval of an enterprise agreement (Peabody Energy Australia Coal (Metropolitan) Deputy Salary Package Agreement 2023).

The employer was seeking FWC approval of the agreement based on an undertaking that employees on a weekend roster would be required to work ordinary shifts on public holidays. Despite also undertaking that it would not breach the NES, the FWC requested the employer to undertake to make rostering of employees on a permanent weekend roster and who work on a public holiday subject to the NES.

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