Ahead of this Easter long weekend, employers should be aware of sudden and immediate changes regarding the rostering of employees on public holidays.
As a result of a very recent Federal Court decision, employers must now “request” employees work a public holiday (noting it must be a reasonable request) before any direction to work the public holiday is issued – an employer’s failure to do so will mean that the working of the public holiday is unlawful, resulting in a breach of the Fair Work Act.
An employee may refuse the request if the request is not reasonable, or the refusal is reasonable.
The following factors will be relevant in determining whether a request is reasonable:
- the employer’s operational requirements;
- the nature of the employee’s work;
- whether public holiday work could be expected;
- the employee’s personal circumstances;
- whether the employee is to get adequate pay for the day;
- whether they are full-time, part-time, casual or a shiftworker;
- the amount of advance notice given.
In light of this decision, it could now be considered unlawful for an employment contract to contain a provision that requires an employee to work on public holidays (instead of stating that the employee may be asked to do so where reasonable).
It remains to be seen whether this decision will be overturned by the High Court but, for now at least, employers are bound by it.
