While in recent times we have accurately predicted that a number of Federal Court decisions would, and have been, overturned by the High Court (cf. Skene, Rossato and Mondelez) and that the practical effects of this decision in terms of the “pub test” are very significant, we think that the far better view is that the Federal Court’s decision in this case is correct and that employers should move quickly to comply with it. We also think that there are still fairly reasonable ways in which compliance can be achieved.
In Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, a Full Court of the Federal Court has held that employers are no longer permitted to automatically roster or require employees to work on public holidays without first providing a reasonable request to that employee to work.
With the Easter and ANZAC Day public holidays fast approaching, it is imperative that employers are aware of these requirements and review their public holiday rostering in light of the Full Court’s decision.
FACTS OF THE CASE
The proceedings stemmed from a claim by the CFMMEU that Operations Services MCAP Pty Ltd (OS), a labour hire company utilised by BHP, breached s114 of the Fair Work Act 2009 (the Act) and, by extension, one of the National Employment Standards (NES), in requiring 85 of its employees to work on Christmas Day and Boxing Day in 2019. It was not in dispute that the relevant employees were on standard form contracts which...
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