Australian employers might need to rethink the use of their automated rostering systems following a decision of the Full Court of the Federal Court earlier this week, which declared that the NES entitlement to be absent from work on a public holiday could only be ignored if the worker responds positively to a genuine request (not a command or a contractual obligation) to attend work on the public holiday.
The worker can refuse the request if:
- the request is not reasonable; or
- the refusal is reasonable.
The key point to note is that there must be a request – not simply a direction or contractual obligation to work. The worker’s entitlement to refuse reasonably should be treated as a work right; and, therefore, the worker should not be coerced or subjected to any adverse treatment in consequence of a reasonable refusal.
The case is Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd (No 2) [2022] FCA 132 (28 March 2023). In that case, the employer was held to have breached the NES. The case has been referred back to the primary judge for determination of remedy and penalties.
No doubt you’ll hear more about it in the coming days. In the meantime, it might be prudent to review your rostering procedures and your employment contracts. Be sure to check with your lawyers!
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