A recent Decision of a Full Bench of the Federal Court in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, has dealt with the provisions of the National Employment Standards affording employees a right to be absent on public holidays and the capacity of employers to seek that they undertake work on such days.

The Decision highlights the need for employers to request, rather than simply require, that employees work on a public holiday. The Decision may raise the need for many employers to review their approach to scheduling work on public holidays.

Importantly, the Decision indicates, in effect, that an employee who is requested to work on a public holiday may refuse the request if the request is not reasonable, or the employee has a reasonable basis for refusing the request. If the employee does not have a proper basis for refusing the request, the employee may ultimately be required to work on the public holiday.

Ai Group members may access a copy of Ai Group’s recent Member Advice which provides practical information for employers on how to address the implications of the Decision regarding the scheduling of work on public holidays.

On 26 April 2023, BHP, on behalf of OS MCAP, filed a special leave application in the High Court of Australia which has yet to be decided.