Employment Relations -Business Improvement Update
Recent Decision: Requesting Employees to work on a Public Holiday Members may be aware of reports from major media outlets regarding a recent Decision of the Federal Court involving an employer’s ability to require employees to work on a public holiday. This news coverage may have created some uncertainty about whether employees are able to choose not to work on a public holiday, even if a business needs them to work. In this article, we outline what this Decision means for THA members and how to ensure you are meeting your obligations under the Fair Work Act 2009 (Cth). Members can access the full Decision at http:// www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/ FCAFC/2023/51.html.
(General) Award 2020 (‘HIGA’)& the Restaurant Industry Award 2020 (RIA ) • While this Decision and the resulting news coverage may insinuate that employees have free choice about whether to work on a public holiday or not, the requirements of section 114 still apply. • Section 114(3) of the Act provides that an employee may refuse to work on a public holiday if the request to work was unreasonable or the employee’s refusal was reasonable. Importantly, this Decision does not remove an employer’s ability to require an employee to work on a public holiday if the request to work was reasonable, and the employee’s refusal was unreasonable. • Members should refer to section 114(4) to assess if their request for an employee to work a public holiday is ‘reasonable’. If an employer has reasonably requested an employee to work on a public holiday and the employee has responded by refusing the request, the employer can again refer to section 114(4) to assess if the employee’s refusal was reasonable. How to request an employee to work a public holiday When requesting and or consulting an employee to work a public holiday, members must ensure their employees are provided with an opportunity to accept or refuse the request. The request to work on a public holiday must be by consultation, not a direction. It is also the view of the THA that issuing rosters by the employer and accepting rosters by employees satisfies the requesting and communication for work rosters including public holidays. For example, • Providing a draft roster to employees and allowing employees to indicate if they would accept or refuse the shift.
The Decision
• On 28 March 2023, the Federal Court of Australia found that BHP’s labour hire division had contravened the Fair Work Act 2009 (Cth) (‘the Act’) when it unreasonably required employees to work over the Christmas and Boxing Day public holidays. The Decision centred on the requirements of section 114 of the Act. Members can access the Act at https://www.legislation.gov.au/Details/ C2021C00421/Html/Volume_1 • The key issue of this Decision was that the employer had not complied with the requirement to request an employee to work on a public holiday per section 114(2). The Court held that an employer must make a reasonable request for the employee to work on a public holiday and that the employee be provided an opportunity to make a choice to either accept or refuse the request. • Importantly, the Decision clarifies that an employer is required to make a request of the employee to which the employee may reasonably refuse. If an employer makes a reasonable request and the employee unreasonably refuses, the employer can still require the employee to work on the public holiday.
Employment Contracts
Members are also encouraged to review existing employment contracts. It is recommended that employment contracts make it clear that the employee is entitled to be absent on a public holiday, however due to the hospitality industry, it is likely that they will be requested to work. This will be useful to foreshadow any later request from the employer. The THA has assisted with contract templates and included wording as per below.
What this means for THA Members
• Work on a public holiday is a common feature in the hospitality industry and is recognised through penalty rates and additional public holiday entitlements contained in the Hospitality Industry
30 Tasmanian Hospitality Review April/May Edition
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