As an employer, it's crucial to have a clear understanding of the rights and entitlements of your employees when it comes to public holidays. In March 2023, the Federal Court ruled that BHP had contravened the National Employment Standards by requiring employees to work on Christmas Day and Boxing Day in 2019 at Daunia Mine in Central Queensland. The Court noted that the Company never asked employees whether they were willing to work the public holidays and did not tell staff they had the right under the Fair Work Act to say no if the request was unreasonable. The decision reiterated that employers must ask and consider a worker's wishes when rostering for public holidays.

Implications for businesses

This ruling introduces significant complexities for organisations that operate rotational rosters, often having significant capital employed and an organisational priority to deliver return on that capital or meet customer demands. Organisations such as health care and aged care are similarly affected where workers play a vital and indispensable role 24 hours a day, 365 days a year. The implications are industry wide — businesses need to be aware of the implications if they have operations requiring people on public holidays.

BHP sought special leave to appeal to the High Court of Australia in relation to this decision. On Tuesday 21 November 2023, the High Court of Australia made a significant ruling when it refused the application, highlighting the crucial implications for employers and industries relying on staff during public holidays. In effect, the High Court's decision means that the Federal Court's decision is now binding in Australia.

As we approach the festive season, many affected employers will have taken note of the Federal Court decision earlier this year and taken steps to ensure that employees required to work on public holidays have been requested to work and taken note of any employees refusing if the request is unreasonable or the refusal is reasonable.

"For those that are considering their strategic and operational plans for 2024, make sure the right amount of attention is going into workforce planning for public holidays, and whether your rosters and employment instruments are fit for purpose", says Greg Prove, Gallagher's Workplace Relations expert.

"At a more strategic level, it is a timely reminder that employers should regularly reflect on ways to balance the operational needs and priorities of their operations, with a close eye on respecting the workplace rights of employees", Greg shares.

How Gallagher can help

Gallagher's team of workplace relations and HR experts are well placed to assist your business to navigate the complexities and changes in employee legislation. Connect with an expert today.

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