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Ask Before Rostering Public Holidays

Greg Arnold

5 Apr 2023

Employers must now consult with employees about working on a public holiday, even if it is their usual rostered day.

The Federal Court of Australia recently ruled that employers must consult with their employees about working on a public holiday, even if it is their usual rostered day to work.  


The landmark court ruling is the outcome from a recent case involving BHP’s internal labour hire, Operations Services, requiring miners to work on both Christmas Day and Boxing Day. 


The Federal Court held that BHP had breached the Fair Work Act because they automatically rostered the employees on these public holidays without consultation, and they were not paid any extra for working on those days.  


In certain industries, such as mining, it is not uncommon for employers to expect employees to work on public holidays when those public holidays fall on a rostered day, especially when a company operates all year round. 

However, employees actually have the right to say no to working a public holiday if they have good reason not to do so, such as family responsibilities.  


This new ruling means employers need to abide by the National Employment Standards (NES) and consult with employees before rostering them to work a public holiday—a change that applies to all workplaces and overrides employment agreements and contracts. 


Keep in mind though, an employer can still require an employee to work a public holiday, if it is reasonable to expect the employees to do so. The reasonableness of that request will depend on the nature of the industry where it is expected the services would be operating—hospitality, retail, health or emergency services, etc—and whether the employee is compensated for working on a public holiday.  


As to the BHP matter, at the time of publishing the court is still deciding on penalties and BHP are currently exploring their appeal options. 


What should employers now do? 

If a public holiday is approaching and an employee is rostered to work, you should consult with that employee about your intentions to roster them and find out if they wish to work the public holiday.  


If they don’t wish to work the public holiday, you should ascertain if their justification is reasonable in the circumstance. More information about an employee’s rights and public holidays can be found in section 114 of the Fair Work Act


For advice about employment law and human resource matters, contact Effective Workplace Solutions today. 

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