Mar 31, 2023

Employees can no longer be forced to work public holidays

Employees can no longer be forced to work public holidays

Aged care employees now have more power to not work on public holidays as employers must ask all staff to work public holidays before rostering them on automatically thanks to a momentous Federal Court ruling.

It comes after mining giant, BHP, was found to have breached the Fair Work Act by forcing 85 miners to work on Christmas Day and Boxing Day in 2019 for no extra compensation.

The ruling is a part of the national employment standards (NES), meaning it overrides all existing contracts, awards and enterprise agreements. 

As a result, employers in all industries will have to make a reasonable request for employees to work public holidays or they could face civil penalties. A roster or contractual requirement does not count as a request either.

“The intended mischief the provision confronts is the inherent power imbalance that exists between employers and employees,” said Justices Berna Collier, David Thomas and Elizabeth Raper.

“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.

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

There is the risk the announcement could place additional pressure on both aged care and healthcare settings as employers may be required to find agency staff to fill shifts – something which has financially impacted organisations in the past.

Providers may also end up short-staffed if they cannot fill rosters on public holidays, impacting the quality of care for residents.

But workers will not have complete control, though, as they can only deny a request to work public holidays if they have reasonable grounds for doing so.

The court recognised the potential for short-staffing if workers do not volunteer to work public holidays, but said the scenario is “an ordinary predicament for any employer asking employees to work non-standard hours”.

Defence lawyers said the ruling will shock many 24/7 industries, including health and aged care, as they believe most employees would assume and accept they will have to work public holidays as part of the job.

They argued it would place an additional administrative burden on employers to request workers every public holiday, but again, the court said that employers never have complete certainty when it comes to employee availability.

Michael Michalandos, Partner at Baker & McKenzie, said the public holiday ruling provides employees with more power as it reinforces that employers cannot roster them at will.

“Unfortunately, I suspect that many employers with large workforces would not have taken such a consultative approach to locking in rosters, relying instead on attractive penalty rates,” Mr Michalandos said.

“The impact of this decision is likely to leave many employers who have not catered for this process on the back foot.”

It’s a big change for the aged care sector with the Easter long weekend just around the corner, and employers will need to be careful to avoid being penalised.

“The case demonstrates the unworkable complexity of our workplace relations system,” Australian Industry Group Chief Executive, Innes Willox, said.

“It provides an example of our workplace relations laws leading to mistakes being made by even Australia’s largest employers, and indeed courts, when determining precisely what is required by our workplace laws.”

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