Union successfully challenges company's policy on public holidays
The Fair Work Division of the Federal Court of Australia recently decided on a union’s appeal concerning a primary judge’s decision to side with a company that required work on public holidays.
On Christmas Day (25 December) and Boxing Day (26 December) in 2019, around 85 OS MCAP Pty Ltd employees worked a standard 12.5-hour shift at the Daunia Mine near Moranbah in central Queensland. The said employees did not receive any additional remuneration for working those days.
The union argued before the primary judge that by requiring that the relevant employees work on a public holiday, the employer violated one of the National Employment Standards (NES), s 114 of the Fair Work Act 2009.
The said FWA section protects employees “not to be required to work on a public holiday,” however, part of it “permits an employer to request an employee to work on a public holiday.”
The union’s appeal of the previous decision challenged the “bounds of this protection” and what a proper “request” looked like under the FW Act.
Before the primary judge, the company said that a “request” applies not only to an employer’s “request” in the form of a question to employees, leaving the employee with a choice as to whether or not to work on a public holiday, but a “request” also applies to a “requirement” by an employer which indicates there is no choice for an employee but to work on a public holiday.
The employer provides production services to mining companies, and its services involve the employees operating mobile mining machinery “to excavate and move earth.”
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.”
At first instance, the primary judge sided with the employer and said the business’ 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. It decided that its requirement to work on public holidays was “reasonable” and did not contravene the FW Act.
The union’s appeal
The Construction, Forestry, Maritime, Mining and Energy Union appealed the primary judge’s decision and asked the division to clarify the meaning of “request” under s 114.
In its decision, the division explained that the law meant to impose the ordinary meaning of the words “request” and “require.” It said that to “request” means “to ask or beg,” “especially politely or formally,” while to “require” is “to demand or make obligatory.”
It said the difference lies in the employee “having a choice,” adding that the employee “may refuse an unreasonable request or, even though the request is reasonable, the individual circumstances of the employee may nonetheless allow the employee to refuse a reasonable request.”
Setting aside the primary judge’s decision
The division then granted the union’s appeal, emphasising that an employer “may make a request of employees in the form of a question.”
It said employers should “leave the employee with a choice as to whether he or she will agree or refuse to work on the public holiday,” and 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.”
Consequently, the division declared that the employer violated the FW Act when it required its production employees to work at the Daunia Mine on 25 and 26 December 2019, which were public holidays.
Thus, the division ordered to have the primary judge’s original decision to be set aside and had the case remitted for determination of remedy and penalty. The appeal was decided on 28 March.
