There has been some publicity recently about public holiday staff regarding a Federal Court decision which some have interpreted to mean that employees can no longer be “required” to work on a public holiday. This is incorrect, the Court has placed focus and importance on the phrasing in the National Employment Standards which states that an employee can be requested to work on a public holiday and cannot unreasonably refuse that request. The question in the matter before the Court was whether a roster is a “request”.
The answer, as determined by the Court is, no. The Court found that a roster is essentially a “requirement” for an employee to work which cannot be unreasonably refused. The Court further determined that what should actually be occurring is the employee be asked if they would like to work on the public holiday and then any subsequent refusal be assessed for “unreasonableness”.
Practically speaking, this means that before an employer issues a roster with public holiday shifts on it, they should ask employees if they are available to work on the public holiday. If an employee advises that they are not, they should be asked why and then a decision must be made whether it would be unreasonable of them to refuse a subsequently rostered shift.
There are two ways to ask staff to work on a public holiday with a minimum of inconvenience to the business
Option 1:
Advise employees of the dates of public holidays where staff are required and ask for volunteers to work the shift.
If not enough volunteers come forward, or if the volunteers who do come forward are not suitable for that particular shift, roster those employees who you determine are required. If the employee who is rostered then come forward and object to the shift, you then have to determine why their refusal is either reasonable or unreasonable.
Option 2:
Issue a Public Holiday Staff “Draft Roster” with a notice clearly indicating that the roster is a draft, for example:
“This is a draft roster and is intended as a request to work on the public holidays specified. If you do not want to work on the public holidays specified please advise us as soon as possible. Please note that we can require employees to work on a public holiday and they may not unreasonably refuse that request”.
Option 2 is a bit inconvenient for businesses because you would need to adjust your usual roster to include the above text specifically when public holiday staff are required and it would have to be issued prior to the usual time when you would normally post a roster to allow a response from staff. However this option meets the requirements of “asking” employees to work a public holiday prior to determining whether their refusal is reasonable or otherwise.
What are Reasonable Requests and Unreasonable Refusals for staff who have been requested to work on public holidays?
This will depend on the individual circumstances of each Bakery and each employee but according to the explanatory memorandum which accompanied the passing of the National Employment Standards, the following matters must be considered:
- The nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
- The employee’s personal circumstances, including family responsibilities;
- Whether the employee could reasonably expect that the employer might request work on the public holiday;
- Whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
- The type of employment of the employee (for example, whether full-time, part-time, casual, or shift work);
- The amount of notice in advance of the public holiday given by the employer when making the request;
- In relation to the refusal of a request, the amount of notice in advance of the public holiday given by the employee when refusing the request; and
- Any other relevant matter.
Using the above list, a request may be reasonable where their contract indicates that they may be required to work on a public holiday from time to time, so they are on notice. Another indication may be where they are part of a workforce that works every day of the year and every employee has their fair share of working public holidays.
A reasonable refusal to work a public holiday may result where an employee has worked a number of public holidays in that year and other employees have not, or where they have a particular religious reason for not working on that day. Another reasonable refusal may occur where an employee has given advance notice of their unavailability due to family commitments.
A refusal would be unreasonable where the employee just states that they don’t want to work on a public holiday and the Act says they don’t have to, with no additional justification provided.
If you have any specific questions regarding employees who are refusing to work on public holidays, please remember that NBIA members have access to free telephone and email advice through the NBIA Members hotline (1300 557 599).