This decision concerns the operation of the new public holiday provisions in s 30 of the Minimum Conditions of Employment Act 1993 (WA) (MCE Act), which commenced on 31 January 2025 and were modelled on s 114 of the Fair Work Act 2009 (Cth). In particular, the Industrial Magistrates Court of Western Australia (Court) was required to consider what constitutes a valid “request” to work on a public holiday and how the reasonableness of such a request is to be assessed, having regard to the Full Federal Court’s decision in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51; (2023) 297 FCR 323 (OS MCAP).

The claimant, a sworn police officer employed in a non-operational role, alleged that the Police Commissioner contravened s 30 of the MCE Act by requiring him to work on the Labour Day public holiday on 3 March 2025.  The claimant commenced proceedings under s 83(1)(e)(ii) of the Industrial Relations Act 1979 (WA) (IR Act) and also sought orders preventing further contraventions of the MCE Act and the imposition of pecuniary penalties, including on the basis that the alleged contravention was a serious contravention.

The claimant had been rostered to work on 3 March 2025, pursuant to a roster published before the new public holiday provisions commenced. Following the legislative amendments, WA Police issued broadcasts explaining the new provisions and establishing a process for employees to request not to work on a specific public holiday. The claimant, through his application, requested not to work because his role did not involve critical duties and because he was required to care for his three children, who would not be at school due to the public holiday. The application was ultimately refused by his supervisor.

The claimant argued that no valid request to work had been made within the meaning of s 30 of the MCE Act. Alternatively, he contended that any request was not reasonable because his duties were office-based, did not involve frontline policing and were not essential to community safety on the day in question.

The Commissioner of Police denied the claim, arguing that the roster, internal broadcasts and discussions between the claimant and his supervisor constituted a request to work within the meaning of the MCE Act.

Applying the principles in OS MCAP, the Court held that a request must leave room for discussion or negotiation and provide the employee with an opportunity to refuse. The Court found that this requirement had been satisfied. It concluded that the broadcasts, discussions with the supervisor and the formal application process through which employees could seek not to work on a public holiday provided the opportunity for consideration and refusal contemplated by s 30 of the MCE Act and accordingly, the claimant had not merely been directed to work.

The Court also found that the request was reasonable. Significant weight was placed on the nature of WA Police as an essential emergency service operating on a 24-hour basis. The Court accepted that sworn officers, including those employed in non-operational roles, remained operational police officers who could be redeployed at short notice if required. It held that the Commissioner was entitled to maintain sufficient operational capacity on public holidays to respond to emergencies and unforeseen incidents.

Importantly, the Court rejected the claimant’s focus on the specific duties he was scheduled to perform on the public holiday, instead determining that the ‘reasonableness’ assessment was not confined to whether the claimant was personally required to undertake urgent or frontline work on the public holiday, but extended to the broader operational requirements of WA Police and the need to maintain an available and deployable workforce.

The Court also considered the claimant’s personal circumstances. While family responsibilities are a relevant factor under s 30(4) of the MCE Act, the Court found that the reasons advanced in the claimant’s application lacked sufficient detail and did not justify his request not to work. In particular, the Court noted that the claimant had acknowledged that his wife was available to care for the children on the public holiday.

The Court further observed that the claimant had previously worked on public holidays and could reasonably have expected that he might be requested to do so again. It also noted that police officers receive employment benefits, including additional annual leave and annualised remuneration arrangements, which reflect an expectation that public holiday work may be required.

The Court concluded that the Commissioner of Police had made a request within the meaning of s 30 of the MCE Act, that the request was reasonable, and that the claimant had failed to establish any contravention of the MCE Act. The claim was dismissed in its entirety. As no contravention was established, the Court also refused the claimant’s application for preventative orders and pecuniary penalties, including his allegation that any contravention constituted a serious contravention.

The full decision can be read here.