Hotel SA Dec 2023-Jan 2024

W O R K P L A C E

R E L A T I O N S

High Court rejects challenge to Public Holidays request OWEN WEBB - AHA | SA WORKPLACE RELATIONS MANAGER

In April this year the AHA|SA provided advice to members on a decision of a Full Court of the Federal Court of Australia (Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 (28 March 2023) (“Decision”)) regarding employer requests for employees to work on public holidays. The Full Court found that BHP’s labour hire division had contravened the Fair Work Act 2009 (Cth) (‘FW Act’) when it unreasonably required employees to work over the Christmas and Boxing Day public holidays.

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) of the FW Act. The Full 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.

BHP sought special leave to appeal the Full Court’s Decision in the High Court, but the special leave request was declined on 21 November 2023. This means that the Full Court ruling will continue to stand and will not be subject to challenge in the High Court.

So given that the Decision will not be challenged in the High Court, Back to Contents

what should members be doing to ensure they are compliant with the Federal Court ruling?

REQUESTING AN EMPLOYEE TO WORK A PUBLIC HOLIDAY 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 (General) Award 2020 (‘HIGA’).

Section 114(3) of the FW 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.

Section 114(4) refers to what factors must be considered to determine whether a request, or a refusal of a request to work on a public holiday is reasonable. Such factors include: • The nature of the employer’s workplace including its operational requirements • The nature of the work performed by the employee • The employee’s personal circumstances, including family responsibilities

• Whether the employee could reasonably expect that the employer might request work on the public holiday • Whether the employee is entitled to receive overtime, penalty rates or other compensation for, or a level of remuneration that reflects expectations of, work on the public holiday • The type of employment of the employee • The amount of notice in advance of the public holiday given by the employer when making the request • The amount of notice in advance of the public holiday given by the employee when refusing the request •

Any other relevant matter

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.

REQUESTING AN EMPLOYEE TO WORK A PUBLIC HOLIDAY When requesting an employee to work a public holiday, members must ensure that their employees are provided with an opportunity to accept or refuse the request. The request to work on a public holiday has to be a question, not a direction.

W W W . A H A S A . A S N . A U

| Hotel SA | 49