Employment Relations -Business Improvement Update
DRAFT CLAUSE - CONTRACTS “You are entitled to be absent from your employment on a day or part-day that is a public holiday in the place where you work. However, the Employer may request that you work on a public holiday if the request is reasonable. If the Employer requests that you work on a public holiday, you may refuse the request if the request is not reasonable, or the refusal is reasonable in accordance with the criteria of the Act. Given that the Employer operates in the hospitality industry you are likely to be requested to work on public holidays and the request is likely to be deemed reasonable.” 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. If your employee refuses to work the public holiday • As mentioned above, section 114(3) of the Act provides employees with the option to refuse the request to work on a public holiday, on reasonable grounds. If your employee refuses the request, members are encouraged to have discussions and negotiations with the employee about the refusal of the request. • If after those discussions and negotiations the employer determines their request for the employee to work the public holiday was reasonable and that the employee does not have reasonable grounds to refuse the request (please refer to section 114(4)), the employer can require the employee to work the public holiday. • This is consistent with the Federal Court’s Decision
at paragraph 5: “Ultimately, after consultation or negotiation, the employer may require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable.”
What about casuals?
As a reminder, section 15A of the Act provides that casual employees have the discretion whether or not to accept shifts that are offered to them, irrespective of whether it is a public holiday or just a standard day of the week. By virtue of the nature of casual employment, the employer cannot compel a casual employee to work any shift that the casual employee does not want to work.
Questions?
If you would like to seek further advice, please contact the THA ’s Employment Relations Manager Merv Saltmarsh on 0407869924 or via email at merv@tha. asn.au
Merv will also cover this matter and other legislation changes in the scheduled Webinars.
Webinar Schedule: Invitations and links will be sent prior to each forum.
• May 9th Tues 11am • June 6th Tues 11am
• August 6th Tues 11am • October 3rd Tues 11am • December 5th Tues 11am
Enquires? Contact Merv Saltmarsh E: merv@tha.asn.au Ph: 0407869924
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