Ground 1 - construction of s 114 of the FW Act - what constitutes a "request"
24 Ground 1 concerns what a "request" constitutes within the meaning of s 114(2). The parties' competing positions may be summarised in the following way. The Union contends that s 114(1) confers an entitlement on an employee not to work on days or part days that are public holidays which is qualified by ss 114(2)-(3). This right cannot be displaced by virtue of the operation of s 61(1) of the FW Act, and as the trial judge correctly acknowledged, at J[85], overrides any contractual provision or any provision of a modern award or enterprise agreement. The notion, on the Union's contention, that an employee may be required to work on a public holiday (whether or not such a requirement is in their contract) is plainly at odds with the entitlement enshrined in s 114(1). Section 114(2) must be construed in that context.
25 OS contends that the primary judge considered and rejected this contention that it was not possible for OS to impose the requirement (as it did not make a request): at J[77]-J[96]. OS contends that his Honour was correct, having considered the text, context and purpose of s 114 of the FW Act, in finding that a requirement to work a public holiday was to be equated with a request to work a public holiday. On OS's contention, in each case, the requirement/request is governed by the same reasonableness filter in s 114(2) of the FW Act, and having regard to his Honour's conclusion that s 114(2) of the FW Act was capable of being contravened by an employer imposing an unreasonable requirement (or making an unreasonable request), the same outcome was reached either way.
26 Thereafter, OS made a submission, which was the subject of its notice of contention, that if the Union is correct in its contention that s 114(2) does not apply to a requirement, then the preferable consequence of such a construction is that identified in the reasons at J[93]: The provision (and for that matter, s 114 more broadly) would have no application to, and would not be capable of being contravened by, a requirement that employees work a public holiday. OS submitted that as a matter of "linguistic construction" (or in confining s 114 "to its literal meaning": referring to J[93]), this is the inevitable consequence of a requirement not being capable of falling within s 114(2).
27 It is worthwhile at this juncture to summarise the primary judge's reasoning with respect to this aspect of the appeal. His Honour identified correctly that the issue as between the parties concerned the meaning of "request" in s 114(2), where the employees were informed that they had to work on Christmas and Boxing Days and where there was no suggestion that the employees were asked "whether they were willing to work": J[78]. On the Union's case, as submitted before his Honour, a contravention will occur where an employer requires an employee to work on a public holiday and has made no reasonable request: 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". On OS's case, the word "request" is intended to cover a requirement by an employer that their employees work on a public holiday. Such a requirement can be a "request [that] is reasonable" within s 114(2): at J[79]. His Honour referred to the dictionary meaning for "request" and noted that there was an area of overlap between both a request and a requirement where they take the form of a question. However, his Honour correctly observed that there is a difference: A "request" leaves the responder with a "choice as to whether or not to do the thing". A "require[ment] involves asking or demanding that a person do something in a manner that indicates that there is no option but to comply": at J[82].
28 The primary judge concluded, at J[87], that s 114(2) was 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 but was also intended to apply to a "requirement" by an employer which indicates there was no choice for the employee but to work on a public holiday for primarily five reasons. First, while such a construction does not "strictly accord" with the language of the provision, if s 114(2) was intended to apply merely to a request giving an employee a choice whether or not to work, there would be no need for the conferral of a right on an employee to refuse to work on a public holiday. Accordingly, s 114(3) is consistent with s 114(2) encompassing a requirement to work: at J[88]. Secondly, the difficulty for a court being able to distinguish between a request and a requirement tells against the Union's construction: at J[89]. Thirdly, a purposive interpretation of s 114 creates a prima facie right for employees to take leave on public holidays balanced against the right of employers to require employees to work where that requirement is reasonable. In this context, his Honour referred to the need for critical services such as police, ambulance, fire services and hospitals to operate every day of the year, opining that in such workplaces, employers must have the capacity to require - not merely request - employees to work on public holidays: at J[90]. Fourthly, on his Honour's view, it is unclear why the legislature used the word "request" at all. The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) did not touch on the issue. However, his Honour found that 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), which did not require that the employer's request be reasonable only that the employee could only, on reasonable grounds, refuse the request. His Honour deduced from this former provision that "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" and where 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": at J[92]. Fifthly, his Honour rejected the Union's argument that a requirement to work on a public holiday can never be a "request [that] is reasonable" under s 114(2) because such an 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)": at J[93]-J[94].
29 For the reasons which follow, we are of the view that the primary judge erred in not accepting the Union's construction of s 114 as being the preferable one. We acknowledge that the primary judge did not have the same level of assistance that we have had in approaching this task and that the Union has raised additional, poignant arguments that were not raised at first instance.
30 Section 114 comprises one of the suite of NES which provide specific minimum entitlement protections for employees. It is clear from s 114(1) that the prima facie position is that an employee is entitled to be absent from his or her employment for a day or part day that is a public holiday. Not only is the employee entitled to be absent but also is entitled to be paid for that day of absence: s 116. The NES comprise standards which apply to the employment of employees, which "cannot be displaced", regardless of contractual compulsion or where, as recognised under the FW Act, an enterprise agreement includes terms of the kind referred to in s 55(5): s 61(1) of the FW Act. Furthermore, in circumstances where those provisions are contravened, an employer can be the subject of civil penalties by operation of s 44.
31 An employee is entitled to be absent from work on a public holiday, unless the exceptions under s 114(2)-(3) apply: An employer has "request[ed]" the employee to work and the request is reasonable (s 114(2), 3(a)) or the employee's refusal is not reasonable (s 114(3)(b)).
32 The ordinary meaning of the words "request" and "require" fortify the Union's position: To "request" means "to ask or beg", "especially politely or formally". To "require" is to demand or make obligatory. The primary judge was correct to recognise the fundamental difference between the two: at J[82]. We are of the view that to read "request" as comprising a demand or making something obligatory is not consistent with what was intended by the legislation, namely that there is a choice: The employee may refuse an unreasonable request or, even though the request is reasonable, the individual circumstances of the employee may nonetheless allow the employee to refuse a reasonable request.
33 Given the purpose of the provision, to ensure that an employee is entitled to be absent from his or her employment on a public holiday (and paid for that absence under s 116), this informs also what the anterior purpose of "request" is in this context. In the decision of Shop, Distributive & Allied Employees Association v Woolworths Ltd [2012] FCA 540, Barker J opined that the apparent purpose of an employer being required to make a "request" included "leaving room for negotiation and discussion" about the exercise of the s 114(1) entitlement: at [20]-[21] and [39]. We concur.
34 It is clear from one's consideration of the words contained within the entirety of the section, that the word "request" connotes the ordinary meaning of the word and envisages a circumstance where there is not a unilateral condition of employment requiring an employee to work on a public holiday, but rather the purpose is to allow an employer in circumstances where the request is reasonable, to ask an employee to work on a public holiday, so as to precipitate a discussion or negotiation, as identified by Barker J above, and most particularly the opportunity for an employee to refuse such a request in reasonable circumstances. The section demands that there be a request in order for subs (3) to apply at all. The structure of the provision encourages a conversation, and the textual indicator that exists in s 114(3) requires, first, that there be a request and, secondly, that there is capacity to refuse. Therefore, the express words and structure of the provision prevent any implication that "request" is synonymous with a requirement. If there were only a requirement, there would be nothing to precipitate a refusal.
35 The same is evident from the use, continually throughout the section, of the noun "request" and also by virtue of the factors contained in subs (4), in particular at (f) and (g), which are extracted as follows:
(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:
…
(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;
36 These factors assume that there will first be a request, in the ordinary sense such that it is known to the employee that he or she can refuse the request. If the term was read, as OS urges, as a requirement, there would be nothing to precipitate the capacity to refuse. The use of the word "request" indicates that there is a choice and it validates it. This interpretation is consistent with the nature of other protections under the NES. Such protections only achieve their effect if they are known to exist by employees. A request impliedly signals to an employee that he or she has a right to take a paid public holiday and to refuse a request. As mandated under ss 124 and 125 of the FW Act, employers are required to provide employees with an explanatory statement as to the nature of employees' protections under the NES. Making a "request" in the ordinary sense provides an opportunity for refusal.
37 A wider reading of the legislative scheme affirms the same conclusion: There are a number of provisions in which the legislature intentionally chose to describe, in the context of other NES, whether a request or a requirement was required. In particular, s 62(1) prohibits an employer from either requesting or requiring an employee to work more than the maximum hours of work and states that "[a]n employer must not request or require an employee to work more than … [the prescribed number of hours per week] unless the additional hours are reasonable". This distinction undermines an argument that the legislature intended, in a later section of the same part of the Act, that "request" become synonymous with "require". It is presumed that a word or phrase has the same meaning throughout a piece of legislation, though it is accepted the presumption yields to the context. The context fortifies this conclusion when one also notes that s 73(2) permits an employer to require an employee to take a period of unpaid parental leave. Again, as with s 65, the legislature has specifically, and in contrast to s 114(2), conferred the employer with a right to direct that the employee do something. In addition, ss 62 (regarding requests for flexible working arrangements), 66F (regarding requests for conversion of employment from casual to part-time or full-time) and 76 (requests to extend unpaid parental leave) are all framed in a manner consistent with s 114(2). They contemplate a request (albeit by the employee) and then allow the employer to consider the request and accept or decline it (within particular parameters). We accept the submission of the Union that these provisions reinforce the Union's position as to why the ordinary literal meaning of "request" should be accepted in s 114.
38 The intended mischief the provision confronts is the inherent power imbalance that exists between employers and employees. By virtue of this imbalance, employees will often feel compelled, and not understand, that they have the capacity to refuse a request that is unreasonable or where their own refusal is reasonable. The requirement that there be a "request" rather than a unilateral command, prompts the capacity for discussion, negotiation and a refusal. Whilst we accept the submission of OS that, purely by virtue of there being a need for a request and given that the FW Act does not mandate anything more, that an employee will not necessarily understand that an employer is not able to impose a requirement or that the employee has the capacity to refuse, nonetheless, we are of the view that this is what the purpose of there being a "request" intends.
39 The primary judge, in essence, determined that a construction whereby "request" was synonymous with a "requirement" arose from a consideration of the interaction between ss 114(2) and 114(3). At J[88], the primary judge found that if the meaning of "request" was limited to a choice as to whether or not to work, there would be no need for the conferral of a right on an employee to refuse to work on the public holiday. The primary judge concluded that s 114(3) must have been intended to allow an employee "to refuse an unreasonable requirement" to work on a public holiday. This interpretation should not be accepted. There is nothing about the relationship between ss 114(2) and 114(3) which leads to the conclusion that if a "request" is used in its ordinary sense, it would mean s 114(3) had no work to do: Necessarily, an employee must accede to the request if it is reasonable unless the refusal is reasonable. The fact of the "request" giving the employee a choice, is limited by the strictures of s 114(3) - the choice is not at large but confined by the subsection and therefore there is work for the subsection to do. Further, a "request" prompts a discussion or negotiation and the opportunity to refuse.
40 We do not accept the foundation for the reasoning of the primary judge, urged upon his Honour by OS, at J[90], that the preferred construction, was to ensure that whilst there was a prima facie right for employees to be absent from work on a public holiday, that right was balanced by the capacity of employers to require employees to work where that is reasonable - which the primary judge understood would be necessary for critical services (such as police, fire services, ambulance services and at hospitals). That outcome follows because an employee must work if the request is reasonable and there is no reason for refusal which is reasonable.
41 To the extent that the primary judge considered the predecessor provision under s 612 of the Workplace Relations Act at J[91]-J[92], as being in some way dispositive, we are of the view that the legislative history supports, rather than undermines, the Union's construction. Section 612 provided as follows:
612 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.
…
42 It is clear from this predecessor provision, that it also contained the same lineal constructional format: A request followed by a refusal. There is nothing on its terms to suggest that a request could equate to a requirement. Furthermore, when one considers its terms by comparison to what is now contained in s 114(3), the new section expands the protection. The employer may only now make such a request if that request is reasonable, taking into account the factors under s 114(4). Of course there may be overlap in the considerations that might arise with respect to either an unreasonable request and a reasonable refusal. However, one can envisage that there may very well be circumstances when an employee does not have particularly compelling circumstances as to why it would be reasonable for them to refuse, but there is now a compulsion on the employer to justify, as reasonable, its request.
43 Contrary to the conclusion of the primary judge, we do not consider this interpretation "skews" the balance against employers. An employer can ultimately require employees to work on public holidays who are involved in critical services or where it is desirable (although "not critical") to remain open on public holidays in circumstances where the employer has satisfied the obligations imposed upon it under ss 114(2) and (3), namely, that it has made a request, that request is reasonable, and in circumstances where an employee's refusal is not reasonable (taking into account the factors in s 114(4)). There is no preclusion that exists of the kind contemplated by the primary judge.
44 The Court does not accept the submission of OS that the Union's interpretation would be inherently unworkable because such an interpretation would mean that an employer could not ever have a roster which included working hours on Christmas holidays or ever contain a contractual requirement. An employer is able to have a roster which includes public holidays. All that is required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised. Similarly, a contract may contain a provision foreshadowing that the employees may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable.
45 An employer never has complete certainty of operation regarding what it would like in the future to demand of its employees and whether it can do so lawfully. An employer is only ever able to demand of its employees what is lawful and reasonable regardless of what a roster or contract say. Indeed, even if a contract contained a term which, in some circumstances, might be lawful and reasonable, does not mean by the intersection of a plethora of statutory obligations, that nonetheless the direction is not lawful in the particular circumstances. It may be, as OS suggested, administratively burdensome for a mine to have to make a request rather than be able to require employees to work on public holidays. However, the legislation intends to confront this very mischief: To ensure that employers do not so require employees to work on public holidays absent the request being reasonable or the employee being able to refuse to work in reasonable circumstances.
46 OS referred to a potential consequence being an absence of employees who volunteer to work on public holidays. OS does not challenge the requirements of s 114(3) which are that the employee may refuse the request if the refusal is reasonable. That is an ordinary predicament for any employer asking employees to work non-standard hours. It is then for the employer to either justify why, despite the fact that there is an absence of volunteers, having made the request, the request is nonetheless, by virtue of operational requirements, contractual requirements, or the nature of its enterprise such as emergency services, reasonable. If the request is reasonable, the employee must work unless the employee has a reason for refusal which is reasonable.
47 OS appeared to contend that what happens in practice somehow informs how the statute is construed, which of course cannot be the case. In any event the Court does not accept that there was any basis for OS to contend that what occurs at OS is what happens in practice.