Construction, Forestry, Maritime, Mining and Energy Union v Os McAp Pty Ltd (No 2)
[2022] FCA 132
•22 February 2022
FEDERAL COURT OF AUSTRALIA
Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd (No 2) [2022] FCA 132
File number: QUD 29 of 2020 Judgment of: RANGIAH J Date of judgment: 22 February 2022 Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) –whether s 114(2) of the Fair Work Act applies to a requirement that employees work on a public holiday –whether s 114(2) is capable of being contravened for the purposes of s 44(1) - where employees were required to work on Christmas Day and Boxing Day - whether requirement to work on those days was reasonable – application dismissed. Legislation: Acts Interpretation Act 1901 (Cth) 15AA
Fair Work Act 2009 (Cth) ss 3(b), 44, 45, 50, 56, 61(1), 88(2), 114, 115, 116 and 539(2)
Workplace Relations Act 1996 (Cth) s 612
Explanatory Memorandum, Fair Work Bill 2008 (Cth)
Cases cited: Blatch v Archer (1774) 1 Cowp 63
Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182; (2018) 363 ALR 101
Massoud v NRMA Insurance Ltd (1995) 62 NSWLR 657
Vines v Djordjevitch (1955) 91 CLR 512
Warner (in his capacity as joint and several liquidator of Bellpac Pty Ltd) v Hung (No 2) [2011] FCA 1123; (2011) 297 ALR 56
Division: Fair Work Division Registry: Queensland National Practice Area: Employment and Industrial Relations Number of paragraphs: 193 Date of hearing: 26-28 July 2021 and 12 August 2021 Counsel for the Applicant: Ms C Howell Solicitor for the Applicant: Construction, Forestry, Maritime, Mining and Energy Union Counsel for the Respondent: Mr M Follett Solicitor for the Respondent: Herbert Smith Freehills ORDERS
QUD 29 of 2020 BETWEEN: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION
Applicant
AND: OS MCAP PTY LTD ACN 626 224 655
Respondent
ORDER MADE BY:
RANGIAH J
DATE OF ORDER:
22 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The proceeding is dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
The pleadings
[4]
The evidence
[14]
The legislative and award provisions
[69]
The alleged contraventions of ss 44(1) and 114(2) of the FWA
[76]
Whether s 114(2) applies to a requirement for employees to work on a public holiday
[77]
Whether s 114(2) is capable of being “contravened” for the purposes of s 44(1) of the FWA
[97]
Who bears the legal onus and evidentiary onus?
[105]
Whether the requirement by OS that its employees work on Christmas Day and Boxing Day was reasonable
[119]
(a) The nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee
[122]
(b) The employees’ personal circumstances, including family responsibilities
[158]
(c) Whether the employee could reasonably expect that the employer might request work on the public holiday
[165]
(d) 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
[173]
(e) The type of employment of the employee (for example, whether full-time, part-time, casual or shift work)
[176]
(f) The amount of notice in advance of the public holiday given by the employer when making the request
[177]
(g) 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
[179]
(h) Any other relevant matter
[180]
Conclusion on reasonableness
[183]
The alleged contraventions of s 45 of the FWA and cl 27.4 of the Award
[190]
RANGIAH J:
In this proceeding, the applicant (the Union) alleges that the respondent, OS MCAP Pty Ltd, (OS):
(1)contravened s 44 of the Fair Work Act 2009 (Cth) (the FWA), by contravening s 114 by requiring employees to work on the public holidays of 25 and 26 December 2019 (Christmas Day and Boxing Day respectively); and
(2)contravened s 45 of the FWA, by contravening cl 27.4 of the Black Coal Mining Industry Award 2010 (the Award) by failing to pay the employees penalty rates for work performed on the two public holidays.
OS denies that it contravened s 114 of the FWA on the basis that the requirement that its employees work on Christmas Day and Boxing Day was reasonable. OS denies that it contravened cl 27.4 of the Award on the basis that it paid annualised salaries to the employees which adequately compensated them for working on the two public holidays.
I propose to proceed by:
(1)describing the facts admitted and the issues in dispute on the pleadings;
(2)describing and assessing the evidence;
(3)setting out the relevant provisions of the FWA and the Award; and
(4)considering the parties’ submissions.
The pleadings
OS provides production services to mining companies which are part of the “BHP Group”. The services involve OS’ employees operating mobile mining machinery to excavate and move earth.
OS provides its services to BM Alliance Coal Operations Pty Ltd (BMA) at the Daunia Mine, near Moranbah in central Queensland. OS’ employees at Daunia Mine are divided between “B Crew” and “D Crew” (also known as “B roster panel” and “D roster panel” respectively).
Between 21 and 27 August 2019, OS informed B Crew and D Crew that all but six employees from each crew would be required to work on Christmas Day and Boxing Day. They were informed that no additional monetary benefits would be paid.
Ultimately, OS authorised 25 employees to take leave on Christmas Day and Boxing Day. A number of other employees failed to attend work on those days without authorisation.
OS admits that approximately 85 of its employees worked at the Daunia Mine on Christmas Day and Boxing Day. Those employees are identified in a Notice to Admit. I will refer to the 85 employees who worked on Christmas Day and Boxing Day as the “employees”.
The Union’s Statement of Claim alleges that:
(1)OS required the employees to work on Christmas Day and Boxing Day.
(2)OS did not make any “reasonable request” that they work on those public holidays and thereby contravened s 114 of the FWA.
(3)The employment of OS’s employees was covered by the Award. Clause 27.4 provides that an employee required to work on a public holiday is to be paid at double time for work performed during ordinary hours, and at treble time for work performed in excess of ordinary hours.
(4)OS contravened s 45 of the FWA by failing to pay the employees for working on Christmas Day and Boxing Day at the rates prescribed under cl 27.4 of the Award.
OS’ Further Amended Defence alleges that the request or requirement that the relevant employees work on Christmas Day and Boxing Day was reasonable. In that respect OS relies upon the following claims:
(1)OS’s business model and operational requirements at the Daunia Mine required its production workforce to operate 24 hours per day, 365 days per year.
(2)The employees were aware, including before accepting their employment, of the requirement to work roster patterns which would include working on public holidays.
(3)The employees were on “standing notice” of the requirement for them to work on public holidays falling within their normal roster.
(4)The employees (other than those on leave) were rostered to work, and had worked, on other public holidays in 2019.
(5)The employees had extensive advance notice in which to organise their personal circumstances, including family responsibilities.
(6)The employees could reasonably expect that they may be required to work according to their normal roster pattern, which may include work on public holidays, including Christmas Day and Boxing Day.
(7)The employees received compensation for, and a level of remuneration which reflected, the expectation that they may be required to work on public holidays.
(8)OS took into account the particular personal circumstances of employees when considering whether to grant requests made by employees to not work on Christmas Day and Boxing Day.
In respect of the allegation of breach of s 45 of the FWA and cl 27.4 of the Award, the Further Amended Defence pleads that the employees were paid an annualised salary which satisfied all entitlements for work on public holidays.
The Amended Reply alleges that OS’ “business model” and the “operational requirements for work at the mine” did not require that the employees work on Christmas Day and Boxing Day; or, alternatively, the “business model” operated in an unreasonable manner. It is alleged more specifically that:
(1)Prior to 2019, production operators at the Daunia Mine were not required to work on Christmas Day and Boxing Day;
(2)There was no operational matter or circumstance which required that OS’ employees at the Daunia Mine be compelled to work on Christmas Day and Boxing Day;
(3)OS advanced production targets to BMA based upon an assumption that the employees would work on Christmas Day and Boxing Day when there was no operational reason to adopt this assumption; and the production targets then set by BMA did not constitute a valid operational reason for requiring employees to work on those days.
(4)The respondent failed to consider reasonable alternatives to requiring the employees to work on Christmas Day and Boxing Day, including seeking volunteers from the employees; offering incentives to encourage volunteers; utilising external labour hire companies; and making up any loss in production prior to or after Christmas Day and Boxing Day.
The Rejoinder asserts that OS did consider other reasonable alternatives to requesting the employees to work on Christmas Day and Boxing Day, but these were determined to be commercially unviable and/or practically unfeasible.
The evidence
OS employs production employees to operate mobile machinery, such as shovels, excavators, loaders and trucks. OS supplies its employees to a number of BHP operations in Australia, including BMA’s operation at the Daunia Mine. OS commenced at the Daunia Mine in April 2019.
There are four “crews” or “roster panels” at the Daunia Mine – known as A, B, C and D Crews. OS’ employees work on B Crew or D Crew. The employees on A Crew and C Crew are a mixture of employees of BMA and labour hire companies.
In December 2019, OS had about 168 production employees at the Daunia Mine, with 84 on each of B Crew and D Crew. The employees were rostered to work on a seven days on/seven days off roster, with rotating day and night shifts. Those on day shift would work from 6.00 am to 6.30 pm and those on night shift would work from 6.00 pm to 6.30 am. A Crew and C Crew would work on those weeks when B Crew and D Crew were off roster.
Since much of the parties’ submissions was concerned with the relationship between OS and BHP, it is necessary to consider the structure of the business known as “BHP” or “BHP Group”. That business consists of two “top level” entities – BHP Group Ltd in Australia and BHP Group Plc in the United Kingdom. The two entities share one Board of Directors and senior management team, and are managed as a single business.
OS was registered on 17 May 2018. BHP Group Ltd is the ultimate holding company of OS. BHP Group Ltd is also the sole shareholder in BHP Metcoal Holdings Pty Ltd.
BM Alliance Coal Operations Pty Ltd (BMA) operates the Daunia Mine. BMA is a vehicle for a joint venture between BHP Metcoal Holdings Pty Ltd and Mitsubishi Development Pty Ltd, which each own half of BMA’s shares.
OS contracted with BMA to provide production services to BMA pursuant to an agreement entitled “Framework Production Services Contract” (the Contract) dated 30 November 2018.
The Contract, in brief summary, contains clauses to the following effect:
(1)Cl 3.3 provides that BMA may request services by giving OS a Site Work Package and that OS must perform its obligations under a Site Work Package issued by BMA.
(2)Cl 3.3 also provides that, prior to issuing any Site Work Package, BMA must invite OS to submit a proposal. The proposal may be accepted or rejected by BMA.
(3)Cl 5.1 provides that OS must perform the services described in the Site Work Package in accordance with the Contract and achieve the applicable Performance Requirement, which is defined to mean “Target Utilisation and Target Production Rate”, for a piece of equipment as set out in the Monthly Mine Plan.
(4)Cl 8.1 provides that BMA will provide OS with a Monthly Mine Plan, which will specify the Performance Requirement, including the Target Utilisation Rate and the Target Production Rate for each piece of equipment.
(5)Cl 10.1 provides that if OS’s performance of the services is such that the overall weighted average Target Utilisation Rate or Target Production Rate is not met, there may be consequences. The consequences depend on the extent of the shortfall, but may include OS having to submit and comply with a recovery plan, or mobilise additional equipment and personnel at OS’s cost; or BMA engaging other contractors, or ending the contract immediately.
BMA issued a Site Work Package on 30 November 2018 for OS to provide production services. Under the Site Work Package:
(1)OS is required to operate specified mining equipment at the Daunia Mine.
(2)Appendix A specifies 72 units of mobile mining equipment including shovels, excavators, loaders and trucks.
(3)Appendix C states that OS will provide a specified number of appropriately skilled production personnel to safely and productively operate each piece of equipment.
(4)Appendix G sets out the amounts to be paid to OS for the services.
(5)Appendix I sets out the Performance Requirements, namely Target Utilisation and Target Production Rates, and the Performance Cap. OS cannot be required to exceed the Performance Cap.
(6)The Target Utilisation Rates are expressed as a certain percentage use per month for each piece of equipment, and the Target Production Rates are expressed as Bank Cubic Metres (BCM) per hour, representing the amount of earth to be moved per hour.
On 29 November 2018, the day before the Contract was entered and the Site Work Package was issued, OS had put forward a business case called the “Engagement Approval Request” to BMA. I infer that the business case was the “proposal” referred to in cl 3.3 of the Contract. Stephen Cole, who is a director of OS and employed in the role of “General Manager Production”, was responsible for checking that the Target Utilisation and Target Production Rates proposed by OS were achievable.
Mr Cole’s evidence principally focuses upon the reasons why the utilisation and production targets put forward in the Engagement Approval Request were calculated on the basis of OS providing services 24 hours a day, 365 days a year; and why it was necessary for OS to require its employees to work on public holidays, including Christmas Day and Boxing Day.
Mr Cole deposes that in the Engagement Approval Request, the utilisation targets for each piece of equipment were calculated by starting with 8,760 calendar hours (24 hours per day x 365 days per year) as the total period of time within which OS was able to operate the equipment; deducting a number of hours based on assumptions of events that would prevent the operation of the equipment (taking into account previous average performance at the Daunia Mine, particularly weather delays); and then setting performance caps for each piece of equipment.
Mr Cole deposes that each month BMA prepares a Monthly Mine Plan (also known as a Short Range Forecast) which sets out the Target Utilisation and Target Production rates for the upcoming month. BMA determines the targets based upon OS’ annual Performance Cap, adjusted for key variables such as weather, crew communications and available equipment. OS provides some input into the process, but that input is not always accepted, and it is ultimately up to BMA to set the monthly Target Utilisation and Target Production Rates.
Mr Cole deposes that OS provided a commitment to BMA that it would provide production services at the Daunia Mine 24 hours a day, 365 days a year. As a result of that commitment, OS expected employees to work on Christmas Day and Boxing Day unless authorised to be absent from work. If the employees rostered did not work on Christmas Day and Boxing Day, the total calendar hours in which OS was able to operate machinery would be reduced by 48 hours. Mr Cole deposes that this would place OS at risk of not meeting its Target Utilisation and Target Production Rates if OS failed to recover this lost utilisation and production in the following months, and at risk of BMA exercising its contractual rights, including to terminate the contract.
OS provides mine site production services to the BHP Group across both coal and iron ore assets. Mr Cole’s evidence is that OS competes against third party providers and if it is not a more commercially attractive choice, it will not be awarded contracts. He deposes that there have been instances where OS has not been engaged as the service provider for a site or asset because it was not the most competitive option in the market.
Mr Cole’s evidence is that the more days OS is able to operate on a site, the higher the efficiency rate and the higher the production volume. He deposes that OS’ operational requirement to work 24 hours/365 days is necessary to make OS more competitive, as it contributes to OS’ BCM costs being lower than those of external third-party service providers. If OS is not operating on a particular day, it does not move the volumes of materials necessary to expose coal. However, OS’ operating costs continue to accrue regardless of whether or not its employees are present on the site. OS’ cost per BCM increases unless it is operating every day. Mr Cole also deposes that not operating 365 days a year carries opportunity costs because the client is not receiving the production volume that leads to revenue generation. Further, the client may be unable to capitalise on a sudden uplift in commodity prices because of lower production volumes on a particular day.
Mr Cole states that there are ancillary costs associated with logistics, travel and accommodation if OS does not operate 365 days a year. For example, if the employees do not work on Christmas Day and Boxing Day and those days fall mid-roster cycle, OS would need to organise extra buses to transport employees between the mine site and Mackay and subsidise more charter flights in and out of Mackay.
Mr Cole deposes that there are two possible alternatives to OS operating 365 days a year, which would achieve the same movement of production volume. The first would be to add more fleet and equipment by purchase or hire to “make up” for the lost days of work. However, this would add significant capital costs to the scope of the work. The alternative is to budget for and run a higher performance base throughout the year. However, there is no guarantee that a higher performance target is achievable and, based on assumptions already factored in (such as wet weather or maintenance of equipment), there is a risk to the viability to OS if it proposes unrealistic targets and does not deliver those targets. Mr Cole considers that the most viable and certain option is to operate the existing fleet and equipment for 365 days a year.
Mr Cole deposes that, in his view, an increased BCM cost due to not operating 365 days a year would have at least significantly undermined OS’ viability to be chosen for the scope of work at Daunia Mine. He makes this assessment, in part, because other third party service operators in the mining sector offer to provide services for 365 days a year.
Ana-Lisa Rodrigues Baptista is employed by OS as “Manager Production”. Her evidence is that, as part of the recruitment process, persons seeking employment with OS are required to attend an engagement centre. Ms Baptista attended a number of recruitment processes. She would inform the potential employees that OS would expect them to work on public holidays if they were rostered to work on those days; and that their annual salary built in compensation for working on public holidays. She states that potential employees would occasionally get a bit disgruntled because they would not be receiving separate penalty payments over and above their annual salary for working on public holidays. In response, she would say that OS operated 24 hours a day, 365 days a year, so that its rosters covered public holidays, and that compensation for public holiday work was built into their annual salary.
Ms Baptista also states that all new starters are required to attend an induction session prior to commencing work. She ran a number of those sessions after commencing her employment in July 2019. OS has a standard induction PowerPoint presentation which was shown during the induction sessions. The PowerPoint includes the following:
[OS’s] employees are rostered to work 24/7 365 days a year. This includes all public Holidays including Christmas and New Years [sic]. You may find this different than your host site (like many of your conditions).
Ms Baptista’s practice was to say words to the same effect at each induction she ran.
Ms Baptista deposes that in August 2019 she became aware that a lot of employees were starting to put in leave applications for Christmas Day and Boxing Day. The Site Work Package sets out a total leave allocation, being the maximum number of people which OS considers can be away on one day without having an adverse impact on OS’ ability to achieve its production and other targets. The Site Work Package provides for a maximum of seven employees per roster panel to be absent on planned leave at any one time and a contingency allocation of one employee per roster panel to be on unplanned leave at any one time. However, it is not uncommon to have more than one employee per crew absent on unplanned leave. Accordingly, Ms Baptista applies leave allocation numbers to allow more room for contingencies such that a maximum of six employees per crew may be absent on planned leave and there is a contingency allocation of two employees per crew to be absent on unplanned leave at any one time.
In about August 2019, Ms Baptista informed Brad Hyvonen, OS’ “Superintendent Production”, that OS could only approve six employees per crew to be absent from work on Christmas Day and Boxing Day. As more than six employees per roster panel had applied for leave on those dates, they discussed how they could decide who would be permitted to be absent from work.
Mr Hyvonen deposes that OS uses a standard form of employment contract which provides that the employees will be required to work on public holidays if rostered to do so. He also states that, upon commencing employment, the employees are sent OS’ Employee Handbook. They are also provided with a laminated roster card which displays a yearly calendar with the days or nights on which they are rostered to work across the year shaded in. For 2019, Christmas Day and Boxing Day were shaded in for all OS’ production employees.
Mr Hyvonen deposes that, during 2019, OS’ employees (other than those on leave) worked on 19 April 2019 (Good Friday), 20 April (the day after Good Friday), 21 April (Easter Sunday), 22 April (Easter Monday), and 6 May (Labour Day). Mr Hyvonen does not recall any employees raising any concerns about working on those public holidays.
Between 21 and 27 August 2019, Mr Hyvonen attended meetings with B Crew and D Crew. He told the employees that OS could only accommodate six employees from each roster panel being absent from work on Christmas Day and Boxing Day and that otherwise it was expected that the employees rostered to work on those days would attend work. He said that OS would probably draw names out of a hat to decide who would have those days off. He said that if the employees had any concerns, they should raise this with their supervisor. He also said that the employees’ annual salaries included compensation for working on Christmas Day and Boxing Day and that there would be no additional compensation for working on those days.
On 4 September 2019, Mr Hyvonen attended a meeting with B Crew. He displayed a PowerPoint presentation which contained the following words, which he read to the employees:
For Christmas and Boxing day this year, 6 people will be allowed to be away per crew.
As some employees already have approval to be absent on Christmas and Boxing day, there are 2 remaining spots left in B crew and 5 remaining spots left in D Crew.
To determine who is allowed to be away per crew, names will be pulled out in front of crew by 24/09/19. We believe this is the fairest approach.
Expressions of interest are to be submitted to your supervisor by 20/09/19.
In future years, people will be chosen by expressions of interest and picked in front of the crew, around July.
People will not be able to have XMAS off again for 2 yrs.
If you have any concerns, please raise these with your supervisor.
Later that day, Mr Hyvonen attended a meeting with D Crew and displayed the same PowerPoint presentation and said the same words.
Mr Hyvonen states that some employees raised concerns about not receiving separate, extra remuneration for working on the two public holidays.
In September 2019, Ms Baptista made a decision, given that more than six employees per roster panel had applied for leave, that OS would not plan for any unplanned leave on Christmas Day and Boxing Day and would instead allow eight employees per crew to be absent on those days.
On 10 September 2019, a drawing of names of the employees who would be permitted to take leave on Christmas Day and Boxing Day was conducted for the employees in D Crew. On 24 September 2019, a similar draw was conducted for the employees in B Crew.
On about 15 November 2019, BMA released the Monthly Mine Plan for December 2019. The Target Utilisation and Target Production Rates set were lower than usual because wet weather was expected in December 2019. Ms Baptista identified that as an opportunity to increase the leave allocation for 25 and 26 December 2019 by not “hot seating” all of the equipment (that is, not having an employee starting a shift using a piece of equipment that had just been used during the previous shift). She asked Glen Scott, the new “Superintendent Production”, to inform employees that they could raise any special circumstances with their supervisor as OS could accommodate some more employees being absent on those dates.
Mr Scott deposes that he prepared a PowerPoint slide to be shown to employees at pre-start meetings on 13 and 14 December 2019. The PowerPoint stated:
Over the upcoming Festive Season, employees are expected to continue to work in accordance with their shift roster (including on the Christmas and Boxing Day public holidays), unless annual or long service leave has been requested and approved.
If you have special circumstances or need to take time off during the Festive Season, we encourage you to raise this with your line leader for consideration by Operations Services.
The PowerPoint was read to the employees by William Martin, a “Supervisor Production” who had replaced Mr Hyvonen.
Mr Scott received a number of leave requests on the basis of special circumstances. Approximately nine requests were granted. The reasons given for seeking leave were principally concerned with family responsibilities towards sick or elderly relatives. The requests of others who did not provide reasons for their leave requests or simply stated that they wanted to be at home with their families were not granted. Mr Scott is not aware of any employee who raised special personal circumstances and did not have their leave request approved.
Ms Baptista deposes that on Christmas Day and Boxing Day, 36 employees did not attend work without prior approval to be absent from work. This was in addition to the 25 employees whose absence from work had been authorised. As a result, the overall performance fell below the performance targets stipulated in the Monthly Mine Plan.
Ms Baptista deposes that to address the underperformance, OS recruited 12 additional employees to work at the Daunia Mine and started hot seating eight diggers in January 2020. It took steps to manage absenteeism rates (the steps are not specified). OS’ performance was able to be made up and any further commercial implications were averted.
The Union relies upon the evidence of Stephen Toomey, an employee of OS at the Daunia Mine. He deposes that, prior to commencing employment with OS, Christmas Day and Boxing Day were generally non-working days across the industry. Mines would be shut and workers would not be rostered to work on those days.
Mr Toomey received a letter of offer from OS for a position as “Operator Production” commencing on 3 April 2019, which he accepted on the same day. The letter enclosed an “Employment Agreement Summary” which contained the terms and conditions that would apply to his employment if he accepted the offer. It also enclosed an “Indicative Total Reward Summary”, which set out elements of the “reward offering”.
The Indicative Total Reward Summary specified an Annual Salary and a Nightshift Allowance, which together provided the “Total Fixed Cash Reward”. The document contained a note stating:
Your Annual Salary includes compensation for all hours you are required to work and remunerates you for all requirements of your position.
The Employment Agreement Summary stated that the Annual Salary was paid in satisfaction of provisions of the Award including, “any other loadings, penalties or allowances payable under that Award”. The document stated that:
Accordingly, you will not be paid any special rates or allowances for working particular times or under particular conditions unless otherwise agreed in writing.
In the Employment Agreement Summary beside the heading “Public Holidays” was the entry:
Please note that in accordance with your roster type, you may be required to work on public holidays and payment for this expectation has been incorporated into your existing remuneration.
An email dated 26 March 2019 from OS to Mr Toomey confirmed that OS’ Employee Handbook had been provided to him. The Handbook stated in cl 2.7:
Employees who work a continuous shift roster and/or are FIFO are required to work on a public holiday if it falls on an ordinary rostered day as they are compensated in their salary for working public holidays.
Mr Toomey states that he was told at a meeting in September 2019 that the employees would be working on Christmas Day and Boxing Day and that requests for leave over the Christmas period were not being accepted so they should not bother making a request (it may be noted that Mr Hyvonen denies that he used such words). Mr Toomey deposes that they were also told that six people would be able to take time off and who they were would be worked out later. He states that this was the first time he became aware of the requirement to work on Christmas Day and Boxing Day.
Mr Toomey states that he wanted to spend Christmas with his mother as she had recently become wheelchair-bound and as this would be her first Christmas without his father. He understood that any request would be rejected and therefore did not put in a request to have Christmas Day and Boxing Day off. Mr Toomey did put his name in for the draw, but was not chosen. He worked on Christmas Day and Boxing Day.
Mr Toomey states that for Christmas Day and Boxing Day 2020, things were done differently and employees were told that whoever wanted time off could put in a leave request and that anyone who was available to work would form part of the skeleton crew.
Mr Toomey deposes that he does not recall the requirement to work on Christmas Day or Boxing Day being mentioned at the Engagement Centre he attended. He states that he did not initially receive a roster card, but obtained a copy from a friend who was working the same roster. He does not recall seeing the PowerPoint slide referred to by Mr Martin on about 14 December 2019.
Marc McDonald is employed at the Daunia Mine as a “Production Operator” in D Crew. In about February 2019, the employees were addressed by the General Manager of Daunia Mine and advised that OS would be a new team within BHP and that it was intended to have labour hire employees changed over to work for BHP in permanent positions. In April 2019, Mr McDonald received a letter of offer of employment with OS, but rejected that offer. On 27 August 2019, he received a further offer of employment and decided to accept the offer. The offer was in relevantly the same terms as that provided to Mr Toomey. Upon commencing work with OS, Mr McDonald attended an induction. He was then required to wear a BHP shirt.
Mr McDonald recalls being told in October 2019 that his crew was required to work over Christmas that year, but that six of the employees would have time off. He states that a number of co-workers were disappointed about this. Later, the employees were told that the six people who would be allowed to have Christmas Day and Boxing Day off would be decided by pulling names out of a hat. Mr McDonald did not put his name in the draw. He deposes that at Christmas 2020, the position was different, and the employees were told that OS would consider any requests to have Christmas and Boxing Day off.
Mr Adam Hammett is employed by BMA at the Daunia Mine in the position of “Operator/Maintainer”. He states that the production employees are BMA employees, employees of external contractors, or OS employees. Employees of OS wear a BHP shirt.
The Union relies upon the affidavits of Stephen Smyth, a Union Branch President and Peter Colly, a research director for the Union, but it is unnecessary to describe the content of their affidavits.
I accept the evidence of the witnesses called by OS. In my view, their evidence was reliable and accurate and was not significantly disturbed by cross-examination.
Where the evidence of Mr Toomey and Mr McDonald conflicts with the evidence of the witnesses called by OS, I prefer the evidence of the latter. The evidence of Mr Toomey and Mr McDonald concerning what they were told or made aware of about working on Christmas Day and Boxing Day, and when, was generally inconsistent with the contemporary documents produced by OS. In my opinion, the evidence of those who made decisions and presented information concerning the requirement to work on Christmas Day and Boxing Day is more reliable than the recollections of Mr Toomey and Mr McDonald.
Mr Toomey and Mr McDonald also gave some evidence concerning production at the Daunia Mine. That evidence seems to be based upon their impressions rather than upon records. I prefer the evidence of the witnesses called by OS to the extent that there is conflict.
The legislative and award provisions
Section 44 of the FWA provides relevantly:
(1) An employer must not contravene a provision of the National Employment Standards.
Note: This subsection is a civil remedy provision (see Part 4-1).
Section 45 of the FWA provides:
A person must not contravene a term of a modern award.
Note 1: This section is a civil remedy provision (see Part 4-1).
…
Section 114 of the FWA provides:
Employee entitled to be absent on public holiday
(1)An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.
Reasonable requests to work on public holidays
(2)However, an employer may request an employee to work on a public holiday if the request is reasonable.
(3)If an employer requests an employee to work on a public holiday, the employee may refuse the request if:
(a) the request is not reasonable; or
(b) the refusal is reasonable.
(4)In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
(a)the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
(b)the employee’s personal circumstances, including family responsibilities;
(c)whether the employee could reasonably expect that the employer might request work on the public holiday;
(d)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;
(e)the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
(f)the amount of notice in advance of the public holiday given by the employer when making the request;
(g)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;
(h)any other relevant matter.
Section 115 of the FWA provides:
The public holidays
(1) The following are public holidays:
(a) each of these days:
(i)1 January (New Year’s Day);
(ii)26 January (Australia Day);
(iii)Good Friday;
(iv)Easter Monday;
(v)25 April (Anzac Day);
(vi)the Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory);
(vii)25 December (Christmas Day);
(viii)26 December (Boxing Day);
(b)any other day, or part-day, declared or prescribed by or under a law of a State or Territory to be observed generally within the State or Territory, or a region of the State or Territory, as a public holiday, other than a day or part-day, or a kind of day or part-day, that is excluded by the regulations from counting as a public holiday.
Section 116 of the FWA provides:
If, in accordance with this Division, an employee is absent from his or her employment on a day or part-day that is a public holiday, the employer must pay the employee at the employee’s base rate of pay for the employee’s ordinary hours of work on the day or part-day.
Under s 539(2), an employee organisation may apply to the Federal Court for an alleged contravention of ss 44(1) and 45 of the FWA. The maximum penalty for a contravention of each provision is 600 penalty units for a serious contravention, or, otherwise, 60 penalty units.
Clause 27.4 of the Award provides:
(a) An employee who is required to work on a holiday is to be paid at the rate of double time for work performed during ordinary hours, in addition to the payment prescribed.
(b) Work performed in excess of ordinary hours on a holiday is to be paid at the rate of treble time.
The alleged contraventions of ss 44(1) and 114(2) of the FWA
The applicant alleges that OS contravened s 44 of the FWA by requiring its employees to work on Christmas Day and Boxing Day without making a reasonable request in contravention of s 114(2) of the FWA. The issues raised for determination are:
(1)Whether s 114(2) applies to a requirement that employees work on a public holiday.
(2)Whether s 114(2) is a provision capable of being “contravened” for the purposes of s 44 of the FWA.
(3)Whether it is the applicant or the respondent which bears the legal onus and evidential onus of proving a contravention of s 44(1) through a breach of s 114(2).
(4)Whether the requirement by OS that its employees work on Christmas Day and Boxing Day was reasonable.
Whether s 114(2) applies to a requirement for employees to work on a public holiday
The applicant’s allegation is that OS contravened s 44(1) of the FWA by contravening a provision of the National Employment Standards. The provision of the National Employment Standards alleged to have been contravened is s 114(2), which provides that:
…an employer may request an employee to work on a public holiday if the request is reasonable.
An issue between the parties concerns the word “request” in s 114(2). The issue arises in the context that OS informed the employees in June 2019 that they had to work on Christmas Day and Boxing Day: there is no suggestion that the employees were asked whether they were willing to work. The Union submits that OS did not “request” the employees to work, but required them to work. The Union argues that a requirement to work on a public holiday can never be a “request [that] is reasonable” within s 114(2). The Union submits that a contravention will occur where an employer requires an employee to work on a public holiday and has made no reasonable request. And there will be no reasonable request where there is no request at all (but only a requirement); or where a request is made that is not reasonable.
OS submits that in s 114(2) the word “request” is intended to cover a requirement by the employer that their employees work on a public holiday. It is submitted that such a requirement can be a “request [that] is reasonable” within s 114(2).
The word “request” appears twice in s 114(2), first in verb form, and then in noun form. The Macquarie Dictionary defines the verb form of “request”, relevantly, as “to ask or beg”; and the noun form as, “the act of asking for something to be given, or done, especially as a favour or courtesy”.
The Union contrasts “request” with “require” and “requirement”. The Macquarie Dictionary defines “require”, relevantly, as, “to ask for authoritatively or imperatively; demand”; and a “requirement” as, “that which is required; a thing demanded or obligatory.”
It can sometimes be difficult, to distinguish between a “request” and a “requirement”. There is an area of overlap and an area of difference between the two. The area of overlap is that both a request and a requirement can take the form of a question. The difference is that to “request” that a person do something is to leave the person with a choice as to whether or not to do the thing. On the other hand, to “require” involves asking or demanding that a person do something in a manner that indicates that there is no option but to comply. Whether something is a request or a requirement may be a matter of context, tone and nuance. For example, the question, “Will you work on Christmas Day?”, may be a request if asked by an employer in a tone which implies a genuine enquiry, but a requirement if asked in a tone that implies a demand. It may be very difficult for a court, lacking a full understanding of nuance and tone, to judge whether an employer requested or required that an employee work on a public holiday.
Section 114 is part of the National Employment Standards set out in Part 2-2 of the FWA. Section 3(b) provides that one of the main objects of the FWA is, “ensuring a guaranteed safety net of fair, relevant and enforceable minimum terms and conditions through the National Employment Standards, modern awards and national minimum wage orders”. Section 61(1) provides that the National Employment Standards are, “minimum standards that apply to the employment of employees which cannot be displaced”. Under s 56, a term of a modern award or enterprise agreement has no effect to the extent that it excludes any provision of the National Employment Standards. Accordingly, the National Employment Standards stand at the pinnacle of the hierarchy of terms and conditions of employment, and have primacy over terms and conditions of employment provided by all other industrial instruments.
The National Employment Standards deal with six categories of leave from employment. Division 10 (ss 114 to 116) is concerned with leave on public holidays.
Section 114(1) confers an entitlement for employees to be absent from their employment on a public holiday in the relevant place. That entitlement, subject to the remainder of s 114, overrides any right of the employer under an employment contract, enterprise agreement or award to require the employee to work on a public holiday.
However, s 114(2) permits an employer to “request” an employee to work on a public holiday, subject to the condition that the request must be reasonable. Section 114(2) appears to be intended to create an exception to the inability of an employer arising under s 114(1) to require an employee to work on a public holiday. However, s 114(2) does not do so clearly since it uses “request”, rather than “require” or “request or require”. Section 114(3) then allows refusal of a “request” to work on a public holiday if the request is not reasonable or the refusal is reasonable.
In my opinion, s 114(2) is not intended to apply only to an employer’s “request” in the sense of a question leaving the employee with a choice as to whether or not to work on the public holiday. The provision is also intended to apply a “requirement” by an employer which indicates there is no choice for the employee but to work on a public holiday.
The construction of s 114(2) as including a requirement by an employer to work on a public holiday does not strictly accord with the language of the provision. However, support for that construction is found in s 114(3) which allows refusal of a “request” to work on a public holiday if, relevantly, the request is not reasonable. If s 114(2) were intended to apply merely to a request giving the employee a choice whether or not to work, there would be no need for the conferral of a right in an employee to refuse to work on a public holiday. Section 114(3) must be intended to allow an employee to refuse an unreasonable requirement by an employer to work on a public holiday. Section 114(3) is consistent with s 114(2) encompassing a requirement to work.
As has been discussed, it may be very difficult for a court to distinguish a request from a requirement since the distinction may depend upon the precise language and tone used. That difficulty tells against any legislative intention that s 114(2) is intended to apply only to a request and not a requirement.
Section 15AA of the Acts Interpretation Act 1901 (Cth) provides that the interpretation that would best achieve the purpose or object of an Act is to be preferred to each other interpretation. The purpose of s 114 considered as a whole is to create a prima facie right for employees to take leave on public holidays, but to balance that right with the capacity of employers to require employees to work where that is reasonable. It can readily be understood that there is a societal need for critical services such as police, ambulance and fire services and hospitals to operate every day of the year. In such workplaces, employers must have the capacity to require – not merely request – employees to work on public holidays. There are, in addition, a myriad of other workplaces for which it is desirable, although not critical, to remain open on public holidays. The intention of s 114(2) is that an employer may require employees to work if that requirement is reasonable, subject to the proviso in s 114(3) allowing employees to refuse to work on a public holiday if the refusal is reasonable. A construction of s 114(2) such that it applies to a requirement by an employer that an employee work on a public holiday is consistent with the purpose of the provision.
It is unclear why “request” was used in s 114(2), rather than “request or require”. For that matter, it is unclear why the legislature used the word “request” at all, since there would seem to be little or no vice in an employer merely requesting an employee to work. The Explanatory Memorandum for the Fair Work Bill 2008 (Cth) does not touch upon these issues. However, the answer may lie in the transposition of some of the drafting from the predecessor provision, s 612 of the Workplace Relations Act 1996 (Cth). That section provided, relevantly:
Entitlement to public holidays
(1)An employee is entitled to a day off on a public holiday, subject to subsections (2) and (3).
(2)An employer may request an employee to work on a particular public holiday.
(3)The employee may refuse the request (and take the day off) if the employee has reasonable grounds for doing so.
…
Although s 612(2) and (3) of the Workplace Relations Act 1996 (Cth) used the word “request”, the context was different. There was no requirement under s 612(2) that the employer’s request be reasonable, and there was no contravention of the provision by the employer making an unreasonable request. The entitlement of an employee to refuse the request under s 612(3) depended on “if” (and only if) the employee had reasonable grounds for doing so. Accordingly, a request by the employer would amount to a requirement because the employee had to work unless he or she had reasonable grounds for refusing. The use of “request” was perhaps a euphemistic, gentler way of saying that an employer could demand or require that an employee work on a public holiday. The balance was swung more towards employees under the FWA since any request or requirement to work on a public holiday has to be reasonable. However, the language of “request” did not change. It may be that the word was simply transposed without adequate consideration of its continuing appropriateness in the new statutory context.
The Union argues that s 114(2) should be interpreted such that a requirement to work on a public holiday can never be a “request [that] is reasonable” within s 114(2). Under this construction, the word “request” would be confined to its literal meaning. There would then be two ways the provision might operate. The first is that a requirement, as opposed to a request, would not fall within s 114(2) at all, so that an employer could, without restriction, require an employee to work on a public holiday. Such a construction would be untenable.
The second way the provision might operate is that contended for by the Union: that any requirement imposed by an employer must always be in breach of s 114(2). However, that construction cannot be accepted. The provision must be intended to provide a balance between the interests of employers and employees and to operate in a practical way. The Union’s interpretation would skew the balance against employers such that no matter how reasonable a requirement to work on a public holiday may be, the employer will always be in breach of s 114(2). That cannot have been intended given the imperative societal need for critically important work to continue on public holidays.
For these reasons, s 114(2) of the FWA applies to a requirement by an employer that an employee work on a public holiday.
In this case, it is clear that OS required its production employees at the Daunia Mine to work on Christmas Day and Boxing Day. That requirement was expressly conveyed in August 2019 when Mr Hyvonen told B Crew and D Crew that it was expected that the employees rostered to work on Christmas Day and Boxing Day, other than those granted leave, would attend work.
Whether s 114(2) is capable of being “contravened” for the purposes of s 44(1) of the FWA
Section 44(1) of the FWA provides that an employer must not “contravene” a provision of the National Employment Standards. Although OS did not take the point, it is necessary to examine whether s 114(2) of the FWA is a provision capable of being “contravened”.
The Union argues that it is a contravention of s 114(2) for an employer to make a request for an employee to work on a public holiday if the request is not reasonable. Against that argument, it may be said that the provision does not directly or expressly state that an employer is prohibited from making a request that is not reasonable. In addition, it may be thought surprising for the legislature to have intended that an employer could contravene ss 114(2) and 44(1), and be liable to a civil penalty, merely by making a polite but unreasonable request that an employee work on a public holiday.
In Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd [2018] FCAFC 182; (2018) 363 ALR 101, the Full Court was concerned with a clause of an enterprise agreement which provided, “HPS may require an employee to work reasonable overtime and the employee shall work such overtime as required”. The Union alleged that by implementing a roster requiring the employees to work unreasonable amounts of overtime, the employer was in contravention of the clause and, consequently, s 50 of the FWA. The primary judge held that the clause was not a provision which could be “contravened” by the employer for the purposes of s 50 because it did not impose any obligation on the employer. Her Honour reasoned that the word “may” merely granted a permission to the employer.
The Full Court rejected the primary judge’s construction, holding:
12 With respect to the primary judge, her Honour’s focus on the word “may” as having a permissive and entitling character failed to appreciate that whilst that was so, when read as a whole, the clause also has restrictive and protective elements. Clause 34.1 does not solely provide for an entitlement to HPS, but is also protective of the interests of employees. The limitation in the clause which qualifies its permissive character is provided by the word “reasonable”. That restriction is not beneficial to HPS. It imposes a negative or restrictive stipulation that only reasonable overtime may be required by HPS. A failure by HPS to comply with that stipulation will constitute a contravention of cl 34.1 and, in turn, a contravention of s 50 of the FW Act. We note, in that respect, that the term “contravene” in s 50 includes “fail to comply with”: s 2B, Acts Interpretation Act 1901 (Cth).
13 ... However, the capacity to require additional work by way of overtime is restricted. That is the work of the word “reasonable”. Its purpose is to qualify the capacity of HPS to require employees to perform additional hours of work. It is manifest that the restriction imposed by cl 34.1 operates upon the permission given to HPS to require additional hours of work. The requirement to observe that restriction is the obligation which cl 34.1 imposes upon HPS. A failure to comply with or observe that restriction will constitute a contravention of the clause.
The clause considered in Hay Point Services has obvious similarities to s 114(2) of the FWA, and the reasoning of the Full Court is apposite to the present case. Section 114(2) qualifies the capacity of employers to require employees to work on public holidays by imposing a requirement of reasonableness.
The National Employment Standards creating entitlements to leave are contained in Division 5 (parental leave), Division 6 (annual leave), Division 7 (personal/carer’s leave, compassionate leave and unpaid family and domestic violence leave), Division 8 (community service leave), Division 9 (long service leave) and Division 10 (public holidays). Division 7 contains Subdivisions A, B, C and CA which deal with paid personal/carer’s leave, unpaid personal/carer’s leave, compassionate leave and unpaid family and domestic violence leave respectively.
These Divisions and Subdivisions generally commence with a section stating that employees have an entitlement to a type of leave. Generally, they do not contain any provision that expressly requires the employer to allow employees to take leave to which they are entitled (an exception is s 88(2), which provides that an employer must not unreasonably refuse to agree to a request to take paid annual leave). However, the conferral of an entitlement upon employees implies a corresponding obligation upon employers to allow that leave to be taken.
The grant of an entitlement under s 114(1) to employees to be absent from their employment on a public holiday implies that employers cannot require them to work on a public holiday, except in the circumstances described in s 114(2). Similarly, the grant of permission under s 114(2) for employers to request (or require) an employee to work on a public holiday “if the request is reasonable” implies that employers are prohibited from making an unreasonable request or imposing an unreasonable requirement. Accordingly, s 114(2) is capable of being contravened for the purposes of s 44(1).
Who bears the legal onus and evidentiary onus?
The Union submits that OS bears both the legal and evidentiary onus of demonstrating that the requirement for the employees to work on Christmas Day and Boxing Day was reasonable. OS accepts that it bears an evidentiary onus, but contends that the legal onus is on the Union to prove that OS contravened s 44(1) of the FWA by contravening s 114(2) by imposing a requirement that was unreasonable.
Section 114(1) confers an entitlement upon an employee to be absent from his or her employment on a public holiday and carries an implication that an employer, subject to the remainder of s 114, cannot require an employee to work on a public holiday. Section 114(2) then imposes a qualification upon, or exception to, that prohibition by permitting an employer to require an employee to work on a public holiday. The permission granted to the employer is itself made subject to a qualification, namely that the request or requirement must be reasonable.
In Vines v Djordjevitch (1955) 91 CLR 512 at 519-520, the High Court held:
But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter…
Section 114(2) allows an employer to depart from the prima facie position under s 114(1) and to require an employee to work on a public holiday. That permission falls into the category described in Vines v Djordjevitch of, “conditions of general application giving rise to a right”. The qualification of that permission, namely that the request or requirement must be reasonable, falls into the category of “additional facts of a special nature …for defeating or excluding the right”. It will be the employer who imposes a requirement that an employee work on a public holiday and the employer who asserts that reasonable grounds exist for that requirement. There are, accordingly, “considerations of substance” for placing the burden on the employer to prove that the request or requirement is reasonable. However, such considerations are not necessarily determinative of the legal onus of proof of a fact, which may be affected by the nature of the relief sought.
I find that the employees received a level of remuneration that reflected an expectation that they would work on public holidays which fell within their rosters, including Christmas Day and Boxing Day.
(e) The type of employment of the employee (for example, whether full-time, part-time, casual or shift work)
The nature of the employees’ rosters, namely seven days on, seven days off, and the remote location of the Daunia Mine, are consistent with an expectation that employees would work on public holidays falling within their rosters. They, in fact, worked on a number of public holidays earlier in 2019, in accordance with their rosters, apparently without complaint. These matters are consistent with the employees expecting to work on Christmas Day and Boxing Day when they were rostered to work on those days.
(f) The amount of notice in advance of the public holiday given by the employer when making the request
As has been discussed, the employees were notified that they may be required to work on public holidays before accepting their employment and were consistently reminded of that requirement after they commenced their employment. They were specifically informed of the requirement to work on Christmas Day and Boxing Day through the 2019 rosters and at meetings in June 2019.
I consider that the employees were given ample notice in advance of Christmas Day and Boxing Day that they would be required to work on those days.
(g) 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
This matter is not relevant in this case.
(h) Any other relevant matter
As I have indicated, s 114(1) of the FWA creates a prima facie entitlement for employees to be absent from work on a public holiday. It is necessary for the employer to demonstrate adequate reasons as to why it was reasonable to require employees to work on a public holiday.
It may be observed that the Union makes no complaint about the employees being required to work on public holidays other than Christmas Day and Boxing Day. The Union implicitly accepts that it was reasonable for employees to be required to work on other public holidays. There is an issue, then, of what differentiates Christmas Day and Boxing Day from other public holidays.
The Union submits, and I accept, that traditionally in the coal mining industry, employees have been asked to volunteer, but have not been required, to work on Christmas Day and Boxing Day. It can also be accepted that Christmas Day and Boxing Day are traditionally regarded by the broader Australian community as days to be spent away from work, and to be spent with family. I accept that these matters distinguish Christmas Day and Boxing Day from other public holidays to some extent. I accept that for a requirement that employees work on Christmas Day and Boxing Day to be reasonable, a strong justification is required.
Conclusion on reasonableness
Although a strong justification is required for the requirement that employees work on Christmas Day and Boxing Day, I am satisfied that OS has adduced sufficient evidence to demonstrate that the requirement was reasonable.
First, OS has demonstrated an operational need for its employees to work on public holidays, including Christmas Day and Boxing Day.
Second, the employees were given notice before they accepted employment with OS that they were expected to work on public holidays falling within their ordinary rosters, and were specifically informed and reminded after they commenced employment that they were required to work on Christmas Day and Boxing Day.
Third, the employees were paid an annualised salary, the level of which was adequate to reflect penalty rates payable under the Award for working on public holidays falling within their rosters, including Christmas Day and Boxing Day.
Fourth, after OS entered into its contract with BMA, there was no reasonable alternative to requiring the employees to work on Christmas Day and Boxing Day. As the employees’ salaries included components for penalties for working on those days, it would not be reasonable to expect OS to have to pay additional amounts to volunteers or labour hire employees to work on those days.
Fifth, OS allowed employees who demonstrated special personal circumstances to have leave on Christmas Day and Boxing Day. The requirement for employees to work on those days therefore had some flexibility. The employees who worked were either unable to, or did not attempt to, demonstrate special circumstances.
In these circumstances, I consider that OS’ requirement for employees to work on Christmas Day and Boxing Day was reasonable. I find that OS did not contravene s 114(2) of the FWA.
The alleged contraventions of s 45 of the FWA and cl 27.4 of the Award
The Union alleges that OS contravened s 45 of the FWA, by contravening cl 27.4 of the Award by failing to pay the employees double or triple time, for work performed on Christmas Day and Boxing Day.
The Union has now admitted that OS’ employees were paid an annual salary which exceeded the amount payable under the Award for their rosters, even assuming work on 10 public holidays in the year. The Union withdrew its submission that, “the annualised salary is [not] sufficient to cover all the entitlements under [the Award] including Christmas Day and Boxing Day 2019”.
The Union has not expressly withdrawn its allegation of contravention of s 45 of the FWA. However, the Union’s admission means that the allegation that the employees were not paid at the rates provided under cl 27.4 of the Award cannot succeed.
The proceeding must be dismissed.
I certify that the preceding one hundred and ninety-three (193) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah. Associate:
Dated: 22 February 2022
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