A decision of the Federal Court has significantly changed the way employers, including aged care homes, must roster staff for work on public holidays. Here’s what you need to know.

Background

There are 11 National Employment Standards (NES). One of these standards entitles all permanent employees to be absent and be paid for a public holiday if they would otherwise have worked on that day (or part-day).

An employer may “request” an employee to work on a public holiday if that is reasonable. An employee has the right to refuse the request if the request is not reasonable or they have a “reasonable” reason for refusing. Section 114 of the Fair Work Act 2009 (Cth) goes on to set out what is a “reasonable request” by an employer, and what is a “reasonable” refusal by an employee.

It is a given that an aged care facility must operate with staff on duty throughout a public holiday. This is reflected in the two awards (Nurses Award and Aged Care Award), enterprise agreements, and often in individual letters of offer or contracts of employment. While not all employees will expect to work on a public holiday, it is likely that employees who work to a roster will be working on a public holiday unless agreed otherwise. Rosters are often published in the same way regardless of whether they involve public holidays or not.

The Change

A recent Federal Court decision (CFMMEU vs OSMCAP Pty Ltd [2023] FCAGFC 51) has put a spanner in the works by interpreting this NES more strictly. Under this new interpretation:

• having a clause in an award, enterprise agreement or contract of employment does not change the basic entitlement for all permanent employees not to work on the public holiday
• a roster (or direction) for an employee to work on a public holiday can only be a “request” rather than a direction
• employees must be given an opportunity to exercise their right to refuse to work if their refusal is reasonable
• a firm roster can only be made once the employer has:

1. considered the reasons given by an employee for refusing to work, and
2. accepted their reasons and excluded the employee from the roster, or
3. rejected their reasons as unreasonable and directed the employee to work on the public holiday.

Also, it seems that a “standing agreement” by an employee to work all public holidays as directed will probably not be acceptable to the Court, especially as it is predictable that an employee’s circumstances, and family responsibilities in particular, may change.

What is a Reasonable Request by an Employer?

The Fair Work Act sets out the matters that must be taken into account when deciding if a request by an employer to an employee to work on a public holiday is reasonable. The following must be considered:

• the nature of the employer's workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee
• the employee's personal circumstances, including family responsibilities
• whether the employee could reasonably expect that the employer might request to work on the public holiday
• whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday
• the type of employment of the employee (for example, whether full-time, part-time, casual or shift work)
• the amount of notice in advance of the public holiday given by the employer when making the request
• in relation to the refusal of a request – the amount of notice in advance of the public holiday given by the employee when refusing the request
• any other relevant matter.

What is a Reasonable Refusal by an Employee?

An employee has the right to refuse a request to work on a public holiday if:

• the request by the employer is unreasonable
• the employee’s reason or reasons for refusing are reasonable.

To decide if an employee’s refusal is reasonable, an employer must take into account the same criteria that they needed to use in making their request:

• the nature of the employer's workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee
• the employee's personal circumstances, including family responsibilities
• whether the employee could reasonably expect that the employer might request work on the public holiday
• whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday
• the type of employment of the employee (for example, whether full-time, part-time, casual or shift work)
• the amount of notice in advance of the public holiday given by the employer when making the request
• in relation to the refusal of a request – the amount of notice in advance of the public holiday given by the employee when refusing the request
• any other relevant matter.

The Residential Aged Care Context

In the residential aged care context, several factors will often be assumed and accepted by both parties when running through the considerations outlined in the dot points above. For example, it is usually a given that the nature of the work requires 24/7 operations, and that public holiday rates will be paid as mandated in the awards and enterprise agreements.

However, as pointed out in the Federal Court decision, the nature of the work and overtime rates are not the only factors that must be considered, and the key factor is that employees must be given a choice, although it is a limited choice, to refuse to work on a public holiday.

What Should an Employer Do?

Even if an award, enterprise agreement or letter of offer/contract of employment provides for an employee to work on a public holiday, an employer should take the following steps:

• publish a draft roster for the relevant period and indicate that anyone who has reasons for not working the public holiday shift must give notice of that fact before the roster is finalised
• give employees an opportunity to provide their reasons for not working the public holiday shift
• use the criteria in the Fair Work Act (the dot points above) to consider the reason/s provided by an employee
• make a final decision on who will be working that shift and then publish the final roster.

What happens if an employer believes that an employee’s refusal to work the public holiday is not reasonable? This is a complex issue, especially if it happens more than once with the same employee. Such issues could increase the risk of adverse action claims and entangle an aged care provider in questions of an employer’s right to issue lawful and reasonable directions, and discrimination on the basis of carer responsibilities. In these circumstances, it may be time to call a lawyer.