The Federal Court of Australia has recently made a landmark decision that mandates employers to seek the consent of their employees before requiring them to work on public holidays, even if their employment contracts or enterprise agreements specify otherwise.
In a case involving BHP’s Operations Services, the court found that the labour-hire unit breached the Fair Work Act of 2009 by mandating miners to work on Christmas Day and Boxing Day in 2019. The court upheld the National Employment Standards (NES), which require employers to make reasonable requests for staff work on public holidays, overriding any contract or award.
The court clarified that a roster or contractual requirement alone does not constitute a reasonable request. The ruling underlines that employers cannot impose finalised holiday rosters on employees without their consent. Employers can still include public holidays in draft rosters if their workers understand that they retain the right to refuse, on reasonable grounds, before final roster approval.
It is important to note that this judgement applies to all workers required to work on public holidays, regardless of their employment status. This suggests that companies that hire workers on platforms such as Uber, Deliveroo, and others may also need to seek their consent before rostering them to work on public holidays.