Wednesday 5 April 2023
The Full Federal Court has handed down a decision which changes the law employees working on public holidays
1. What does the NES say?
The NES gives employees a right to not work on a public holiday. It enables an employer to request that the employee work on a public holiday provided the request is 'reasonable'. The employee can refuse the request of it is unreasonable.
The question of whether something is reasonable or not is determined on a case-by-case basis and with consideration to a number of factors.
2. The way it has worked until now
Despite what the NES says, the concept of 'reasonable' was interpreted broadly and enabled an employer to put a clause in a contract which arguably set out the request and therefore employers were able to have some certainty about staffing their businesses during public holidays.
The law has now been clarified and this requires employers to make changes.
3. The new law
The Full Federal Court decision says that the concept of making a request is a question leaving the employee to answer it yes or no. In other words, just having the requirement in a contract may not be enough.
The decision indicates that the employer needs to do more than just put it in a contract. The employer need to make the request and the employee still has the right to refuse it if it is unreasonable.
It is likely that any clauses in contracts which compel the employee to work on the public holiday will not be enforceable, and any disciplinary action you take when the employee does not make themselves available to work, could contravene the adverse action rights in the Fair Work Act.
4. What do I need to do?
- Make sure you make proper requests for staff to work on public holidays. You can do this by making sure your staff know that the roster for the public holiday is a draft and is subject to their agreement.
- Review your contract templates to remove any clauses that may compel the employee to work the public holiday.
- Update your policy on working public holidays and if you don't have one introduce one.
- Urgently consult with staff who have been rostered on public holidays.
If you need help reviewing your contract templates, consulting with staff or devising a policy on public holidays, please contact us.