A recent Federal Court ruling found a large Australian multinational employer must pay almost $100,000 for failing to consult its workforce over Christmas rostering decisions. A legal expert unpacks this case and shares other tips for ensuring end-of-year celebrations remain safe and compliant.
As the festive season nears, organisations must balance workforce demand, public holiday entitlements and the expectations that come with end-of-year celebrations. These moments, while routine, often expose legal, cultural and safety risks that require proactive management.
This article sets out the critical considerations employers should keep in mind to safeguard their people and maintain a fair, compliant and respectful workplace.
Christmas holiday and public holiday rostering
A recent Federal Court ruling has reinforced a critical point for employers operating in Australia, particularly those with complex rostering arrangements. The Court fined a large Australian multinational for failing to ‘request’ that employees work on public holiday, and instead enforcing that they do so.
The Court found the company required the employees to work across Christmas Day and Boxing Day without providing workers with a genuine choice. The Court confirmed that under the Fair Work Act, employers may request employees to work on public holidays, but that request must be framed as a question, not a directive.
Employees must have the ability to reasonably refuse. In this case, the employer breached the Act by mandating 12.5-hour shifts on 25 and 26 December.
The High Court had previously declined an appeal, cementing the principle that a ‘request’ cannot be disguised as an instruction. While annual salaries accounted for public holiday work, $83,700 was awarded to the 85 workers impacted for the breach of statutory rights. In addition, organisation was also ordered to pay $15,000 in fines to the union.
The key takeaway for HR and business leaders is that they must review rostering and communication practices across their operations.
Organisations must ensure requests for public holiday work are genuine, well-documented and allow employees to exercise their right to refuse the request where reasonable.
Non-compliance may lead to financial penalties and reputational damage.
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Can employees legally refuse to work on a public holiday?
Where an employee has been asked to work on a public holiday, they have a legal right to refuse to work.
This right to refuse applies regardless of whether the employment contract explicitly requires the employee to work on public holidays and extends to all industries and forms of employment.
The employee must demonstrate that their refusal to work on a public holiday is reasonable in the circumstances, such as requesting to spend time with their families or observing a religious holiday.
The Fair Work Act sets out a range of factors employers must take into consideration when determining whether a request from an employee to have a public holiday off is reasonable.
Some of the factors employers are to consider include:
- whether an employee is compensated for working on a public holiday;
- the amount of notice given to the employee;
- the employee’s personal circumstances; and
- the nature of the work performed by the employee.
If the employer determines that the employee’s refusal to the request to work is unreasonable, an employer may still lawfully require them to work. For example, if an employee has agreed to work public holidays in their employment contract and/or is paid for working public holidays.
“Organisations must ensure requests for public holiday work are genuine, well-documented and allow employees to exercise their right to refuse the request where reasonable.”
As such, some recommendations for employers who request and require employees to work during public holidays are:
- Take the time to assess your resourcing needs over the end-of-year break and, if a skeleton staff is required for operational continuity, provide employees with advanced notice that they may be required to engage in work over public holidays.
This information should be communicated to employees well in advance of the public holiday required to be worked. It would be best-practice to first ask for any volunteers who would like to work over this period, as they may wish to take leave for a more culturally significant holiday. - When making a request for an employee to work on a public holiday, clearly communicate to the employee that they have a choice whether to work.
If a roster is presented to staff, it must be made clear to them that the roster is a draft and that they may still refuse their allocated public holiday shift. Employers must also ensure that this process allows for discussion, negotiation and consultation before an agreement is reached between the employee and employer. - Employers should not take disciplinary action against an employee, such as warnings, dismissal, demotion or change working hours, where an employee has refused to work over a public holiday. If an employer did take such action they would be open to claims of adverse action due to the employee exercising a workplace right to refuse to work a public holiday, among other things.
- If working over holiday periods is common for your workplace, consider establishing a public holiday policy.
Other end-of-year legal considerations: the workplace Christmas party
While considerations surrounding work arrangements over public holidays are important for employers to keep in mind, the festive season brings other legal considerations as well, including a spike in legal risks.
Every year, managers, leaders and HR teams deal with the fallout from end-of-year events, ranging from misconduct to reputational damage. So how do you keep the celebrations fun while staying safe and compliant?
Key considerations to keep in mind when planning workplace end-of-year celebrations are outlined below:
- Know where ‘the workplace’ begins and ends. If your organisation funds or organises the event, then misconduct, even offsite, can be treated as a workplace-related event.
- Plan ahead. Choose a suitable venue, ensure safe transport options and appoint responsible individuals (think “party marshals”) to monitor behaviour and manage risks.
Pre-determined party marshals are employees who volunteer to stay sober and keep an eye out for their colleagues. These individuals will have a formal responsibility for responding to any issues that may arise throughout the night. - Manage alcohol and safety. Confirm beforehand, and ensure at the time, the responsible service of alcohol and have a clear action plan if things go wrong.
- Reinforce expectations. Send a friendly but firm reminder about respectful conduct, and that disciplinary action will be taken against employees if they fall short of the standard expected.
If relevant, let employees know that there will be formally appointed party marshals at work-related events.
- Ensure all employee training is up to date and comprehensively covers issues of harassment, bullying and discrimination. Update policies to cover your organisation’s expectations at work events and ensure reputational and social media risks are also revised.
- Train your managers. Make sure managers are updated on the latest best practice in responding to issues that arise, including complaint handling.
- Act quickly if issues arise. Investigate complaints promptly and apply the applicable processes fairly and decisively.
A proactive and informed approach to both work arrangements and celebrations over the festive period will ensure that organisations are in good stead for a relaxing and enjoyable holiday period – hopefully incident free.
All information, content and materials available on this site are for general informational purposes only. The contents of this article do not constitute legal advice and should not be relied upon as such.