Employees must agree to holiday shifts

Employers have been reminded that they cannot list their employees on public holidays without their consent.

This was made clear in a recent landmark court ruling that applies to all workplaces, regardless of existing contracts or agreements.

Finding that Operations Services breached the Fair Work Act by requiring miners to work on Christmas and Bank Holidays, the ruling sets a precedent for all employers to follow. It requires workers to be asked if they would like to work on public holidays, giving them the right to choose.

The decision is an important step towards the protection of workers’ rights. It ensures that they are not unfairly forced to work on public holidays without consent.

Employers are reminded that they must comply with the Fair Work Act and respect the right of their employees to decide how they are listed. The decision is expected to have far-reaching implications as it will create better working conditions for all workers.

What happened?

In March 2022, the Federal Court of Australia ruled that employers cannot automatically list employees to work on public holidays without their consent. The court found that such practices breached the Fair Work Act and the National Employment Standards (NES).

The ruling means employers must now take several steps to comply with the law, including publishing public holiday lists in advance, providing valid reasons for requiring employees to work and giving employees the option to accept or reject the list.

Deepesh Banerji, Chief Product Officer at Deepesh Banerji, provides insights on how technology can help businesses comply with the recent Federal Court of Australia decision. The ruling requires employers to seek consent from their workers before calling them to work on public holidays, assuming they automatically accept it.

Deepesh Banerji suggests that current technology can help employers and employees comply with court orders and build trust between them.

“Last week’s Federal Court of Australia ruling requires employers to ask employees if they want to work on public holidays and cannot automatically list their work. This welcome change will positively impact the shift of workers across a range of industries, from aged care to hospitality to retail, providing greater flexibility and fairness, leading to more engaged teams.

“Many businesses have previously assumed that employees accept to work on holidays when they join 24/7 operations, and labor shortages have exacerbated the problem. Ahead of the ANZAC Day public holiday, we look forward to more shift workers getting the chance to spend time with their loved ones, which the white-collar workforce has long been able to do.”

What employers need to know

To comply with the law, employers must not automatically list employees for public holidays. Instead, they must take certain steps, including publishing public holiday lists in advance and providing valid reasons for requiring workers to work. Employers must also inform employees that they can reject or accept the list and assess whether any rejection is reasonable.

If the rejections are reasonable, employers should find replacements and re-follow inquiries. Employers must review their contracts to ensure compliance with the law and cannot require employees to agree in advance to work on public holidays.

Employers need a good reason to require employees to work on public holidays and should consider factors such as the nature and operational requirements of their workplace, penalty rates, overtime and public holiday work policies or agreements.

Employers who do not follow the appropriate inquiry process for public holiday employment may be subject to NES penalties ranging from AUD 16,500 to AUD 82,500 for individuals and AUD 165,000 to AUD 825,000 for corporations: depending on the severity of the violation.

The Shift Confirmation feature offered by MP can help employers comply with court orders. More here.

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