Employees must be asked to work public holidays per Federal Court ruling

Employers must now make a request for their staff to work public holidays following a major Federal Court ruling that could change the way organisations roster their staff.

The ruling has huge ramifications for the aged care sector as staff are often expected to work public holidays based on their usual rostering, but now an employer must request they take on the shift even if it was a previous contractual obligation.

Employees do not have complete free reign, though, as they can only decline a public holiday shift if their refusal is reasonable.

The change in the national employment standards (NES) will override any existing contracts, awards or enterprise agreements.

It’s the result of a landmark case against mining giant, BHP, which was taken to court by the Construction, Forestry, Maritime, Mining and Energy Union after forcing 85 employees to work on Christmas Day and Boxing Day in 2019 for no additional benefit or compensation.

Justices Berna Collier, David Thomas and Elizabeth Raper said the decision was necessary as there is often “intended mischief” when rostering staff that results from “the inherent power imbalance that exists between employers and employees”. 

“By virtue of this imbalance, employees will often feel compelled, and not understand, that they have the capacity to refuse a request that is unreasonable or where their own refusal is reasonable,” they said.

“The requirement that there be a ‘request’ rather than a unilateral command prompts the capacity for discussion, negotiation and a refusal.”

It’s not yet clear if the ruling will come into effect for the Easter long weekend, nor are the ongoing implications of a reasonable or unreasonable refusal to work.

Most likely, it will fall in line with existing judgements for taking annual leave and workplaces should have the protection to not be left short-staffed.

However, there is the risk that agency workers may be required to fill gaps on public holidays, coming at an additional financial cost to ensure aged care residents and home care clients receive the necessary support.

But the court said that the dilemma of having few employees volunteering to work public holidays is an “ordinary predicament”.

As a result of the changes, the rostering process will also have to factor in the additional time it takes to make a request and receive a reply for public holidays. 

Despite the fact that the additional administrative burden was highlighted by lawyers for BHP, the court rebutted by saying that “an employer never has complete certainty of operation regarding what it would like in the future to demand of its employees and whether it can do so lawfully”.

Providers who continue to automatically roster employees on public holidays could face civil penalties.