A significant Federal Court decision impacting how Public Holidays are managed has been handed down (right before Easter holidays).

I provide a brief below:

A significant Federal Court ruling has stated that employers cannot simply expect or roster employees to work public holidays without first specifically seeking their consent. This ruling applies to all workplaces, irrespective of any existing contracts or agreements.

The Federal Court’s decision was made by a full bench and found that BHP’s internal labour hire unit, Operations Services, violated the Fair Work Act by mandating miners to work on two public holidays, being Christmas Day and Boxing Day.

The decision, which affirms the National Employment Standards overrides contracts, awards or enterprise agreements.

The ruling could expose all employers to civil penalties; however, an employer can require an employee to work on a public holiday if the refusal is unreasonable given the nature of the work, reasonable employer expectations, the type of employment and the level of pay.

The judgment is a significant win for Unions and extends far beyond BHP to other workplaces, affecting Easter and Anzac Day which are right around the corner.

Employers will need to adapt and provide their workers with a genuine choice that allows them to refuse public holiday working requests.

The prospect of civil penalties against employers who fail to follow this approach gives the Unions enormous leverage, and at a time where Union interference is becoming more prevalent.

The court is yet to determine the penalties against BHP for the breaches, and BHP is considering an appeal but hasn’t yet responded to the finding of the Federal Court.

My Thoughts:

• My assumption is the annualised wage arrangements or all-inclusive hourly rates that are high enough to compensate for penalties payable is what is meant by “level of pay” when considering whether the employee’s refusal was reasonable. This makes it very important to ensure your contracts of employment contain offsetting clauses and specifically identify the intention of all-inclusive pay is to offset public holiday penalty rates payable.

• The more concerning thing I see is the manner of how you are to prove, that for every occasion, you sought agreement from every employee rostered for that public holiday. Most businesses have simply relied on a roster, and an employee accepting that roster with the appropriate contract terms that addressed rostering on public holidays. But that practice will now specifically goes against the ruling.

• It will mean a lot more administrative burden to make sure you’re always recording the agreement to work a public holiday, and compliance with pay obligations for those arrangements.

• The current Government and Courts are going to continue adding layer upon layer for a few years, I expect. So get used to these changes because the complexity is growing.

• Please ensure you take appropriate steps wherever you expect your people to work any public holidays.