All I want for Christmas is……a reasonable request to work public holidays

It is timely to revisit a decision which surprised many employers, relating to the rostering of employees on public holidays.  Our clients may remember that the Federal Court found that the employer, OS MCAP Pty Ltd (OS), contravened sections 44 & 114 of the Fair Work Act 2009 (Cth) (the Act) by requiring 85 employees to work on Christmas Day and Boxing Day in 2019 without making a reasonable request under s114 of the Act.  The CFMMEU pursued proceedings in the Federal Court for breach of the National Employment Standards.

The Court has now determined appropriate remedies. The result – compensation to each employee in the range of $800.00 – $1,700.00 and a pecuniary penalty of $15,000.00 payable to the union.[i]

A quick reminder – Background Facts

The dispute arose after OS issued rosters to 85 production-employees to work over the public holidays, without first making a reasonable request under s.114(2) of Act.

The employees’ contracts of employment provided that they “may be required to work on public holidays and payment for this expectation has been incorporated into your existing remuneration” and their remuneration exceeded the relevant Award (taking into account ten public holidays worked per year).

The Federal Court found that OS had breached section 114 of the Act, by requiring (and not requesting) employees to work on a public holiday.

Key Takeaways

Section 114(1) of the Act gives an employee the right to be absent from work on a public holiday unless an employer makes a reasonable request.

Sections 114(2)-(3) allow for a request by the employer, and a refusal by the employee if the request is not reasonable or their refusal is reasonable. If an employee is rostered to work a public holiday (or told to work) without a prior request / opportunity to refuse, the employer risks breaching section 44 and 114 of the Act.

Section 114(4) sets out factors to determine whether the request or refusal is reasonable:

• 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 shiftwork);
• 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.

If the statutory process is not followed, the employer will be in breach, regardless of what the contract states, and depending on the circumstances, employers may be exposed to claims for economic loss, non-economic loss and penalties under the Act.

Practical Tips for Employers

Employers should:

• Review employment contracts that include clauses about public holiday work to ensure they are clearly framed as a request rather than a unilateral requirement.
• Develop a documented process for requesting public holiday work (e.g. circulate drafts rosters, consider objections and record responses).
• Provide sufficient notice of public holiday work requests, and consider the factors in s.114(4) (e.g. personal circumstances, nature of the workplace, whether employees could reasonably expect public holiday work).

Summary

This decision emphasises an employer cannot avoid the obligations imposed under s.114 of the Act simply by paying an above Award salary to cover public holiday work.

Employers should treat public holiday work with care – a reasonable request, an opportunity to refuse, and consideration of the factors contained in s.114(4) of the Act.

A failure to do so may result in the employer ending up on the Federal Court’s naughty list.

[i] Mining and Energy Union v OS MCAP Pty Ltd (No 3) [2025] FCA 1372. https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2025/2025fca1372