New public holiday rostering rules: what you need to know

A recent decision from the Federal Court will change the way you roster employees to work public holidays, including the upcoming Easter public holidays.

If you weren’t already aware of this ruling, it’s important you get across this quickly, as employers now need to make sure, in advance of any public holiday, that they have a mechanism in place to confirm their employees’ ability to work the day.

This ruling was only recently handed down on March 28, which is tricky timing for SMEs rostering across the Easter break.

Here’s some fast advice on how you can get ahead of this for the long weekend.

What does the ruling mean?

The ruling overturns conventional approaches to rostering on public holidays and certainly affects how rosters and staff will operate, not only over the upcoming Easter break, but beyond.

Essentially, the decision means employers have to request if they want their employees to be available to work any public holiday , as opposed to just rostering them to work. Failure to do so could mean an employer is in breach of the Fair Work Act.

Automated rostering processes that do not incorporate a request for employees to work on public holidays are no longer valid. Employers must introduce a mechanism for making such requests before issuing any direction to work on public holidays.

What does this mean for employers?

The decision has significant implications for employers who rely on traditional rostering methods to have employees work on public holidays.
Employers must now ensure that they make a request for employees to work on public holidays before requiring them to do so.

This request can be inserted into the rostering process using specific language that indicates that the roster is in draft form and that employees can refuse any allocation to work on public holidays.

In addition, employers will be required to have a process for considering and answering any employee refusals to work public holidays as they become known.

Background to the decision

The decision in CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51 was based on a roster issued by mining company OS MCAP, requiring 85 employees to work on both the Christmas Day and Boxing Day public holidays.

Although some employees were rostered to work on Christmas and Boxing Day, OS MCAP communicated with employees that they could request to have the public holidays off if they had special circumstances. Nine requests were granted, and the remaining 85 employees worked on both public holidays.

The Fair Work Act 2009 outlines the provisions that govern public holiday entitlements, including section 114(1), which grants employees the right to be absent from work on a public holiday.

Section 114(2) allows employers to request that employees work on public holidays, but only if the request is reasonable.

Section 114(3) grants employees the right to refuse an unreasonable request, and section 114(4) provides guidelines for determining the reasonableness of a request or refusal.

However, the Federal Court found that employers must request that employees work on public holidays before they can require them to do so.

Looking ahead

The Federal Court’s decision has no doubt upended the traditional approach to rostering employees on public holidays.

This ruling not only affects the upcoming Easter break but looking ahead to holidays including the King’s Birthday weekend in June and various state holidays throughout the year.

Employers will need to adapt and adjust quickly, as the court ruling is immediate and subsequent refusals to request employees work on public holidays could result in a breach of the Fair Work Act.