Two Recent Workplace Decisions

Please find below information regarding two decisions recently handed down by the courts related to Australia’s workplace laws.

Rostering on Public Holidays

On Tuesday 21 November, the High Court refused special leave to appeal in respect of the decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51. Accordingly, the earlier decision of the Full Federal Court will stand.

This earlier decision held that the right of an employer to “request an employee to work on a public holiday if the request is reasonable” under section 114(2) of the Fair Work Act 2009 (Cth) meant that an employer must ask an employee to work on a public holiday, rather than automatically roster them to work on such a day. 

This is a significant decision which will impact a lot of employers, particularly those in industries which require staff to work over the Christmas and New Year period.

Please find below a fact sheet provided to the AADA by the Australian Chamber of Commerce and Industry (ACCI) on rostering on public holidays.


Right of Entry Decision

Last week the Full Federal Court handed down a decision confirming the broad scope of s484 right of entry laws.

In CEPU v Austal Ships Pty Ltd [2023] FCAFC 180, the Full Federal Court confirmed that union officials can use their right to enter premises for ‘discussions’ with members for the purpose of gathering signatures on petitions or ‘secure a commitment to a particular course of action in the future’, i.e., beyond the end of the discussion. Which in this case was securing signatures backing a majority support determination.