Leave and Entitlements


With Easter holidays upon us, the Courts have given a timely warning about the provisions of the Fair Work Act 2009 about working on public holidays.

The Fair Work Information Sheet summarizes s114 of the Act as “employees get a paid day off if you would normally work. If asked to work you can refuse, if reasonable to do so”.

Last week the CFMEU won an appeal in the Federal Court regarding this very issue.  A decision by the primary judge found that a company OS MACP Pty Ltd had not contravened the Act by requiring staff to work on public holidays. The Appeal Court found against that.

OS MACP breached the Act by stating the “requirement” to work public holidays in the employment contracts, putting staff on the roster without providing a draft or giving them an option to refuse or discuss and notifying new starters during induction they should be available all year round including public holidays. Using the word requirement made the employees feel they had to comply whereas to request they work would give them the option to reasonably refuse or engage in a discussion. They now await the court’s penalty decision on the contravention.

Employers can make reasonable requests for staff to work public holidays but should take into account the operational requirements of the job, the individual’s family responsibilities, penalty rates and entitlements and ensure they are providing enough notice. Contracts should be worded appropriately, policies and procedures in place to reflect legislation around rosters and public holidays and managers educated on how to comply with the Fair Work Act.

Are you being “required” to work on public holidays?  is your employer making you feel forced or left with no choice? For questions on any workplace matter give us a call on 08 9301 0850

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