Construction, Forestry, Mining and Energy Union v Mt Arthur Coal Pty Ltd  FWC 2548 (25 June 2013)
When some employees refused to work on a public holiday and sought the support of the Fair Work Commission they were in a for a rude shock – the Commission (FWC) sided squarely with the employer.
The National Employment Standard on public holidays was the subject of this case, with the employees arguing the NES meant the employees had a right to choose, to volunteer to work, and that they couldn’t be required to. The union’s argument centred on the proposition the workers rostered on the public holidays weren’t in fact needed, that there were alternatives.
This was easily dismissed by FWC on the basis that employers rarely, if ever, voluntarily pay punitive penalty rates on public holidays for other than very good operational reasons.
The principle at issue hinges on the word “reasonable” as the relevant NES uses this word for both the request to work and the right to refuse. In other words, in a dispute, FWC will balance the reasonableness of the request with the reasonableness of the refusal. In doing that, key issues arise such as:
– the terms of the relevant NES, award and/or enterprise agreement;
– the nature of the industry and how commonplace or not working on holidays is; and
– whether there is any compensation involved.
This case covered mining, and around the clock operations are typical, long-standing and well known. FWC was largely dismissive of the union’s claims and arguments although did recommend that the employer give as much notice as possible to employees who would not be needed so they could make, and secure, personal commitments well in advance.
This case highlights the importance of making relevant clauses in enterprise agreement spell out the requirement, or the likelihood of the need, to work public holidays.