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, 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.

For example,

• Providing a draft roster to employees and allowing employees to indicate if they would accept or refuse the shift, or

• Making the request in the form of a question.

Hotels should also review existing employment contracts. It is recommended that employment contracts make it clear that the employee is entitled to be absent on public holidays, 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.

If An Employee Refuses To Work The Public Holiday

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 an employee refuses the request, members are encouraged to have discussions and negotiations with their employee about the refusal of the request.

If after those discussions and negotiations the employer determines their request for the employee to work on the public holiday was reasonable and that the employee does not have reasonable grounds to refuse the request, 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 discussion 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.”

Casual Employees

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. However, the employer still has an obligation under section 114(2) to request that an employee work on a public holiday regardless of whether the employee is full-time, part-time or casual.

Summary

The key issue in the Full Court’s Decision was that the employer had not in the Court’s view 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. Importantly, the decision does clarify that 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.

A reminder for hotels to ensure compliance with new food safety standard.

Hotels are reminded that they need to ensure that they are compliant with Food Safety Standard 3.2.2A – Food Safety Management Tools (Standards 3.2.2A)

Standard 3.2.2A commenced on 8 December 2022 and it placed new obligations on food businesses in Australia that handle unpackaged, ready to eat, and potentially hazardous foods.

Under the Standard, Category one businesses such as hotels need to comply with three new food safety management tools which includes:

• Food handler training;

• The appointment of a certified food safety supervisor; and

• Substantiation of critical food safety controls (evidence).

A 12 month transitional period was provided to ensure that businesses implement these new management tools before 8 December 2023.

Information and resources to assist members including a Food Safety Fundamentals Package are contained in the members only portal of the AHA|SA website under the Food Safety tab.

Limitations Commence On Fixed Term Contracts

The Federal Government’s Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) introduced changes with respect to the use of fixed term contracts of employment.

From 6 December 2023 onwards an employer that engages an employee on a fixed term contract of employment, will need to:

• Provide the employee with a Fair Work Fixed Term Contract. Information Statement. The Statement will be available to download off the Fair Work Ombudsman’s website from 6 December 2023. Employers will need to provide employees with the Fixed Term Contract Information Statement as well as the current Fair Work Information Statement.

• Ensure that they do not provide an employee (excluding casuals) with a fixed term contract that is for a period of greater than 2 years for the same role, including any extensions or renewals of contract.

• Ensure the fixed term contract cannot be extended or renewed more than once for the same role, even if the combined period is less than 2 years.

There are further limitations in relation to consecutive contracts.

There are also exceptions to these new fixed term contract limitations such as those working on government funded contracts, high income earners, temporary absences, traineeships and apprenticeships and where a modern award allows for multiple contract renewals.

For further advice on fixed term contracts we recommend that members contact the AHA|SA workplace relations team.