Public Holiday Shifts: Consult Before You Commit

Are you aware that Employers are now required to consult with employees about working on public holidays, even if those days fall on their usual rostered schedule?

The Federal Court of Australia ruled in a landmark case in 2023 that employers must engage in consultation with their employees regarding work on public holidays. This decision emerged from a case involving BHP’s internal labour hire, Operations Services, which required miners to work on both Christmas Day and Boxing Day without prior consultation or additional compensation.

The court determined that BHP had violated the Fair Work Act by automatically rostering employees on these public holidays without consulting them and failing to provide extra pay for the holiday work.

In industries like mining, it is common for employers to expect employees to work on public holidays when they fall on a rostered day, especially for companies operating year-round. However, employees have the right to refuse to work on a public holiday if they have reasonable grounds, such as family responsibilities.

This ruling mandates that employers comply with the National Employment Standards (NES) by consulting with employees before scheduling them to work on a public holiday. This requirement applies to all workplaces and takes precedence over any existing employment agreements or contracts.

Nevertheless, an employer can still require an employee to work on a public holiday if it is deemed reasonable. The reasonableness of this request depends on factors such as the nature of the industry—like hospitality, retail, health, or emergency services—and whether the employee receives appropriate compensation for working on a public holiday.

How do you manage this in your workplace?

Employers will need to reconsider their current approach to working arrangements on public holidays, particularly if this involves automatically rostering employees to work on these days.

As a public holiday approaches, if an employee is rostered to work, employers should consult with the employee to discuss their intentions. It’s important to determine whether the employee is willing to work on the public holiday. If the employee prefers not to work, employers should evaluate if their reasons are reasonable under the circumstances.

One way to approach this is to issue rosters that cover public holidays in advance and in draft form and should make it clear to the employees effected that they can accept or refuse their proposed shift on the public holiday. If an employee refuses, consideration will then need to be given to whether the reasons for the refusal are reasonable.

Employers will also need to revisit their employment agreements to ensure that any provisions therein dealing with work on public holidays are consistent with this decision – namely, these provisions should simply foreshadow that employees may be asked to work on public holidays. Employment agreements should not stipulate that employees are required to do so.

For advice on employment law and human resource matters, contact Effective Workplace Solutions today.

Disclaimer: This article provides a summary only of the subject matter without the assumption of a duty of care by Effective Workplace Solutions. No person should rely on the contents as a substitute for legal of other professional advice.