Recent Decision: Rostering requirements for Employees on Public Holidays

Recent decision rostering requirements for employees on public holidays

In the matter of Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 the Full Court of the Federal Court recently considered public holiday provisions in the Fair Work Act 2009 and has ruled that employers cannot roster employees on a public holiday without requesting first.  


The case concerned the terms of an employment contract for employees who were in engaged by OS MCAP Pty Ltd (OS) to undertake work at the Duania Mine run by BM Alliance Coal Operations. 

The employment contracts stipulated that employees were required to work on public holidays without additional pay as their base wages compensated for such entitlements.

At the start of the relevant employment period, employees were provided with set rosters which identified all shifts which included public holidays that employees were required to work. 

The proceedings specifically concerned disputes as to which employees were granted leave over the Christmas period. As it was unfavorable to accept all applications for Christmas leave, OS randomly selected employees who were granted leave. 

7 employees were granted leave whilst the rest were required to work over the Christmas period which included numerous public holidays without additional compensation as per their employment agreement. 

CFMEU Arguments

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) lodged the proceeding against OS claiming they had allegedly breached section 144of the Fair Work Act 2009 which amounted to a breach of the National Employment Standards. 

Section 114 of the Fair Work Act outlines that:

  1. Employees are entitled to be absent on a public holiday
  2. Employers are entitled to request their employees work on a public holiday if that request is reasonable
  3. Employees are entitled to refuse the request to work a public holiday if the request is unreasonable


The Court held that OS did not request for their employees to work over the Christmas period in turn breaching section 114. Merely rostering them of was not enough to amount to a request. 

The Court considered that a request in the context of section 114, must leave the employee with a choice as to whether or not they choose to undertake the request. The Court stated that this is distinct from a requirement for an employee to do something. 

Information for Employers

Following this decision, it is important the employers take into account their rostering standards in regard to public holidays and whether they are consistent with the requirements of section 114. 

The effect of section 114 would be that all employees who are to be rostered on a public holiday but be expressly asked prior. The employee will also have the express right to decline that request if it is deemed unreasonable. 

Disclaimer: This publication is intended for general and informative use only and is not to be relied upon as professional financial or legal advice.

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