A recent Federal Court case concluded mining company BHP breached the Fair Work Act 2009 by requiring employees to work on Christmas and Boxing Day. The National Employment Standards (NES) is responsible for outlining regulations for employees working public holidays. The standards state employees must have a choice to work a public holiday or not. Meaning employers must ask employees to work a public holiday, not automatically roster them on. An employee may decline to work a public holiday if the request is unreasonable or if they have reasonable grounds to do so.
Key points for consideration for employers:
- The Fair Work Act 2009 overrides any existing contracts or agreements. This means employees must be asked to work a public holiday, even if it is stated in their contract that they are required to work public holidays.
- Ask employees well in advance if they can work a public holiday and provide employees the option to decline.
- A request to work on a public holiday must be reasonable. Refer to the Fair Work Act 2009 when determining reasonability.
- Understand whether a refusal to work a public holiday is reasonable or unreasonable.
- Review existing contracts to make certain they aligned with the NES.
Seeking employee approval to work a public holiday may be a shift in rostering practices for some employers. However, this change needs to be adopted immediately, as breaches of this law may subject employers to fines.