Federal Court Public Holiday Ruling: What This Means For Small Business Owners
Written by Simon Bowe – CFO of The Coffee Commune
Are you prepared for the public holidays this Easter weekend? A landmark decision from the Federal Court has changed the rules and it is important that you are aware of how that affects your employees working on public holidays.
Last week, the Full Federal Court ruled that employers cannot rely solely on provisions in modern awards, enterprise agreements, or contracts that require work on public holidays. Employers must first make a request and consider the employee’s response before issuing a formal requirement that employees work public holidays. A term in a modern award, enterprise agreement or contract that states a requirement for work on public holidays will be relevant but not decisive as to whether the request is ‘reasonable’.
Key elements of the ruling are:
- Employers must request the employee work a public holiday, not automatically roster them on. Simply issuing a roster or relying on a contractual requirement is not sufficient.
- An employee may refuse the request (and not work the public holiday) if they have reasonable grounds for doing so.
- The employer must consider if a refusal by an employee is reasonable, though an employer would need to take great care in dealing with this scenario
- Employers that don’t follow the new rules could expose themselves to civil penalties.
In practical terms, this means that even if an applicable modern award or enterprise agreement or contract clearly provides for employees to work on public holidays as required, employers should:
- Issue an ‘indicative roster’ for periods including public holidays, or alternatively request employees to work on upcoming public holidays.
- Explain why the employer believes the need for the workers to perform work on the public holiday is reasonable.
- Each employees should then be given the opportunity to agree to work the shift or provide reasons why they will not work the shift.
- Employers then make a final decision taking into account the relevant factors including reasons offered by employees for not accepting the request to work on the public holiday.
There are a number of matters that need to be considered under the Fair Work Act when determining whether a request or refusal is reasonable, including the nature of the employer’s workplace or enterprise, the employee’s personal circumstances including family responsibilities, the amount of notice given by employer and employee and whether the employee could reasonably expect that the employer might request work on the public holiday.
As a café owner, you need to be aware of this new ruling if you have employees working this Easter. The impact is likely less in the hospitality industry as penalty rates in the awards often make public holiday shifts sought after. Regardless, business owners should protect their business by following a process that requests rather than directs employees to work on those days.
We recommend you to take this information into account when planning for the Easter weekend and to ensure that you are in compliance with the Fair Work Act.
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