Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51 | Case summary

Background facts 6 The factual background to the proceeding is not disputed on appeal and is set out in detail in the primary judge's reasons: at J[14]-[64]. 7 By way of summary, the respondent employs production employees to operate mobile machinery which include shovels, excavators, loaders and trucks, for its mining clients including a number of BHP operations in Australia, including BM Alliance Coal Operations Pty Ltd (BMA) operations at the Daunia Mine. OS commenced work at that particular mine in April 2019. OS contracted with BMA to provide production services to BMA pursuant to an agreement entitled "Framework Production Services Contract" dated 30 November 2018 (Contract). As identified by the primary judge at J[21], the Contract, in brief summary, contained the following relevant clauses: (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. 8 In essence, OS's evidence (as accepted by the primary judge) was that by virtue of the strictures of BMA's Target Utilisation and Target Production rates for each month, BMA required a commitment from OS that it would provide production services at the Daunia Mine, 24 hours a day, 365 days a year. Further, if employees were rostered to work but did not work on Christmas Day or Boxing Day, the total calendar hours in which OS was able to operate machinery would be reduced by 48 hours, placing OS at risk of not meeting its contractual obligations, and at risk of BMA exercising its contractual rights including to terminate the Contract. 9 The relevant employees were engaged pursuant to a standard form contract, which foreshadowed that employees "may" be required to work on public holidays and receive no additional remuneration. Relevant parts of the standard form contract are extracted as follows: Your roster pattern will be 7 days on, 7 off, 7 nights on, 7 off working 12.5 hour shifts plus reasonable additional hours as required. … 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. … Employees working a continuous 7 day roster pattern will receive 6 weeks annual leave per year. Employees not working a continuous 7 day roster pattern will receive 5 weeks annual leave per year. If you are a part-time employee you are entitled to paid annual leave on a pro-rata basis. Annual leave accrues progressively and accumulates from year to year. Payment for annual leave absences is based on your total salary including allowances. Your annual leave must be taken in accordance with applicable legislation and Company policy, including that annual leave can only be taken with approval by your Supervisor or otherwise as directed by the Company, subject to operational requirements. The Company reserves the right to require you to take annual leave when you have excessive annual leave accruals. Appropriate notice will be given to you should this be required. If you are a casual employee you are not entitled to annual leave; you receive a loading in lieu of annual leave. (Emphasis added.) 10 Relevant to this appeal is an understanding of the circumstances which led to the employees being required by OS to work on Christmas Day and Boxing Day. As identified in the preceding paragraphs, the employees' contracts stipulated that they "may be required to work on public holidays" (emphasis added). Employees were provided with a roster on a laminated card when they first commenced employment, which identified all of the shifts, whether they were seven days on or seven days off, including the public holidays they would be required to work. New starters were required to attend an induction session prior to attending work. As part of that induction session, new starters were shown a PowerPoint which included the following (referred to at J[34]): [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). 11 In August 2019, OS became aware that a number of employees were putting in leave applications for Christmas Day and Boxing Day. BMA's Site Work Package provided 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 put on unplanned leave at any one time. 12 As identified by the primary judge at J[40], there were a number of meetings between OS management and employees in August and September 2019, where OS told the employees that it could only accommodate six employees for each roster panel being absent from work on Christmas Day and Boxing Day. 13 Employees were shown a PowerPoint presentation on 4 September 2019 (extracted by the primary judge at J[41]), which stated as follows: 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. 14 On 10 September 2019, OS selected randomly employees in the D Group who would be permitted to take leave on Christmas Day and Boxing Day. On 24 September 2014, OS conducted a similar exercise with respect to the B Group employees. 15 On or about 15 November 2019, BMA released the Monthly Mine Plan for December 2019. The Target Utilisation and Target Production rates required of OS were lower than usual because wet weather was expected in December 2019. This presented an opportunity for OS to increase the employee leave allocations for 25 and 26 December 2019. As a consequence, employees were informed that, as identified by the primary judge at J[46] and J[47], they could, if they had "special circumstances" or needed to take time off during the festive season, raise their individual circumstances with their line leader for consideration. A number of requests were received on the basis of special circumstances, and approximately nine requests were granted. The primary judge noted the following with respect to those leave requests and the employees' bases for these requests, at J[49]: 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. 16 There was evidence before the primary judge that at least one employee, Mr Toomey, did not make any request to be absent on Christmas Day or Boxing Day because he understood it would be rejected. In particular, that portion of the primary judge's reasons with respect to the evidence of Mr Toomey, at J[58]-[61], is extracted as follows: 58. 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. 59. 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. 60. 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. 61. 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. 17 The undisputed evidence before the primary judge was that OS never made a request of its employees asking them whether they would be willing to work on Christmas or Boxing Day 2019. Rather, there was an assumption that those employees rostered to work on those days would work on those days, unless they applied for leave and it was granted. The primary judge found, at J[96]: 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. 18 OS did not at any time from the inception of employment, communicate with employees that they had the right under s 114 or otherwise to refuse (if the refusal was reasonable) to work on Christmas Day or public holidays generally.

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.

Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd

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Judgment (10 paragraphs)

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Legislation Cited (2)

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