23-059

23-059 | 4 April 2023

Relevant for Directors and CEOs

Member clubs are advised that due to a recent decision of the Federal Court of Australia (the Court) on 28 March 2023, the customary process for rostering employees on public holidays has changed, with immediate effect. As a result of this decision, clubs must “request” an employee to work on a public holiday before requiring them to work on the holiday.

For more information regarding the facts of the matter, please refer to a copy of the decision here.

What does this mean for the Easter public holidays?

1. Clubs must advise employees that the roster issued for the Easter public holidays is a request to work which may be reasonably refused.
2. Employees should be given a deadline to refuse to work the public holidays and provide a reason as to why they are refusing.
3. The club must then determine if the refusal is reasonable or unreasonable using the following factors:
   1. the nature of the employer's workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
   2. the employee's personal circumstances, including family responsibilities;
   3. whether the employee could reasonably expect that the employer might request work on the public holiday;
   4. whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
   5. the type of employment of the employee (for example, whether full-time, part-time, casual or shift work);
   6. the amount of notice in advance of the public holiday given by the employer when making the request;
   7. in relation to the refusal of a request, the amount of notice in advance of the public holiday given by the employee when refusing the request;
   8. any other relevant matter.
4. If the club determines the refusal is unreasonable, they can direct the employee to perform the work. Otherwise, if the refusal is reasonable, the employee can have the day off and the club must source the labour elsewhere.

A further step clubs should take is to ensure employment contracts specify the employee may be requested to work on public holidays when the request is reasonable, and a refusal is unreasonable. However, whilst this will assist with a club’s ability to argue their request is reasonable, clubs will not be able to solely rely on a contractual term to require an employee to work on a public holiday. Further steps in line with the above will need to be taken.

With the assistance of Australian Chamber of Commerce and Industry we have prepared an additional fact sheet for clubs.

If you need assistance with any of the above, please contact ClubASSIST on 1300 730 001 or via enquries@clubsnsw.com.au.

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