Federal Court explains why working on public holidays was 'reasonable'
A recent Federal Court decision has upheld an employer’s requirement for employees to work on Christmas and Boxing Day after their union failed to challenge it.
The union alleged the employer contravened the Fair Work Act and an award by requiring work on public holidays and failing to pay the penalty rates for work performed on the said dates. The employer rejected the union’s allegation and said it paid annualised salaries to the employees which “adequately compensated” them for working on the two public holidays.
The employer provides production services to mining companies and its services involve the employees operating mobile mining machinery “to excavate and move earth.”
At a mine where they work, the employer required “approximately 85 of its employees” to work on Christmas Day and Boxing Day with “no additional monetary benefits.”
The union challenged the employer’s requirement and alleged the latter did not make any “reasonable request” to work on those public holidays, contravening the FW Act. The union also said the employee was covered by an award which states that “an employee required to work on a public holiday is to be paid at double time for work performed during ordinary hours and at treble time for work performed in excess of ordinary hours.”
The employer defended its policy, saying that their “business model and operational requirements” required its production workforce to “operate 24 hours per day, 365 days per year” and the employees were “aware” even before accepting employment of the requirement “to work roster patterns which would include working on public holidays.”
The employer also said the employees were on “standing notice” of the requirement for them to work on public holidays falling within their normal roster; had “extensive advance notice” and received “a level of remuneration which reflected the expectation that they may be required to work on public holidays.”
The court received evidence that revealed the employer was “contractually bound” to achieve production targets based on the “24 hour/365 day-model” which meant it had an “operational requirement” for the employees to work even on public holidays which fell within their rosters.
Read more: Public holidays in Australia
The court explained that if the employer “simply decided” that its employees did not have to work on the said dates, the employer would be “at risk of breaching its contract” with its client.
The court also found the employer “clearly considered” its decision as shown in how it designed its contracts to offer annualised salaries providing compensation for working on public holidays and when it decided upon how many employees would be allowed to take leave.
According to records, the employer showed a standard presentation during the induction sessions which indicated that employees could be rostered on all public holidays and were verbally instructed with the same information.
The court was satisfied that the employer “demonstrated an operational need” and the employees were “given notice before they accepted employment.” The court also found that their annualised salary reflected “adequate pay.”
In its decision, the court noted that the employer even “allowed employees who demonstrated special personal circumstances to have leave” on holidays that they were required to work, saying the employer had “flexibility.”
Finally, the court concluded that its employees “could reasonably expect, both before and at all times after they commenced employment,” that the employer might require work any day of the year. Thus, it ruled that the employer’s requirement was “reasonable” and did not contravene the FW Act.
The decision was handed down on 22 February.
