Clubs are reminded of the recent Australian Federal Court ruling that declared managers must request employees to work on public holidays, rather than command them to do so.
The Full Court of the Federal Court, in a decision CFMMEU v OS MCAP Pty Ltd, found that the effect of the National Employment Standards (NES) is that in all cases, employees must be given a choice as to whether they will agree or refuse to work on a public holiday.
The Fair Work Act makes it clear that employers do not have an unqualified right to simply roster or “require” employees to work on public holidays. A request must be made first in relation to each public holiday and the request by the employer needs to be “reasonable”.
A failure to make a genuine “request” to work before imposing a requirement may result in a claim alleging a breach of the NES and penalties can apply.
If reasonable, an employee can only refuse to work the public holiday shift if the refusal is reasonable.
The ruling has had implications for all hospitality venues, including clubs, where it is common to work on public holidays. Many businesses assumed that employees had to accept working on public holidays when they joined a club operation with long opening hours, and labour shortages exacerbating the issue.
“The declaration by the Australian Federal Court last week, requires employers to ask workers if they want to work public holidays, and cannot automatically roster them work,” says Deepesh Banerji, Chief Product Officer at rostering software company Deputy.
“This is a welcome change that will positively impact shift workers across a range of industries — from aged care to hospitality to retail — delivering more flexibility, and fairness resulting in more engaged teams.
“Ahead of the Easter long weekend and ANZAC Day public holiday, we look forward to seeing more shift workers get the option to spend time with their loved ones — something the white-collar workforce has long been able to do.”