Requesting and Refusing to Work on Public Holidays

Today is Australia Day, currently held each year on 26th January, which is considered one of the country’s national public holidays.

Public holidays can have different pay and entitlements when it comes to working as outlined in the Fair Work Act 2009 (Cth) and National Employment Standards (NES).

 

The National Employment Standards (NES)

The NES are the 11 minimum standards of employment. The national minimum wage and the NES make up the minimum entitlements for employees in Australia.

An award, employment contract, enterprise agreement or other registered agreement can’t provide for conditions that are less than the national minimum wage or the NES. They can’t exclude the NES.

The NES cover the following:

  • Maximum weekly hours of work
  • Requests for flexible working arrangements
  • Offers and requests to convert from casual to permanent employment
  • Parental leave and related entitlements
  • Annual leave
  • Personal/carer’s leave, compassionate leave, and family and domestic violence leave
  • Community service leave
  • Long service leave
  • Public holidays
  • Notice of termination and redundancy pay
  • Provision of a Fair Work Information Statement and Casual Employment Information Statement (the CEIS)

 

Requesting and Refusing to Work on a Public Holiday

When it comes to public holidays, it’s important you’re aware of the dates for each year dependant on your state or territory. You can find out more here.

All employees have a right to not work on a public holiday, however, an employer can ask an employee to work on a public holiday, if the request is reasonable. An employee may refuse a request to work if they have reasonable grounds.

The following need to be taken into account when deciding if a request is reasonable:

  • The employee’s personal circumstances, (eg. family responsibilities)
  • Whether the employee will get more pay (eg. penalty rates)
  • The needs of the workplace
  • The type of work the employee does
  • Whether the employee’s salary includes work on a public holiday
  • Whether the employee is full-time, part-time, casual or a shiftworker
  • How much notice the employee was given about working
  • The amount of notice the employee gives that they refuse to work

 

When requesting that an employee work on a public holiday, employers need to consider all relevant circumstances.

If you do work on a public holiday, employees should get paid at least their base pay rate for all hours worked on public holidays.

Awards, enterprise agreements and other registered agreements can provide entitlements for working public holidays, including:

  • Extra pay (eg. public holiday rates)
  • An extra day off or extra annual leave
  • Minimum shift lengths on public holidays
  • Agreeing to substitute a public holiday for another day

 

Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023]

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) brought a claim to the Federal Court of Australia on behalf of employees who were employed by OS MCAP Pty Ltd (OS), for contraventions of the Fair Work Act 2009 (Cth).

Employees who were rostered on to work their normal shifts on both Christmas Day and Boxing Day in 2019 were not given a choice whether to work or not.

The CFMMEU argued that by requiring employees to work on these public holidays, OS contravened section 114 of the Act as well as the National Employment Standards (NES). The basis of their claim was that the employers did not “request” the employees to work and subsequently, did not give them the right to refuse if it was reasonable to do so.

By simply rostering employees on to work over a public holiday, this does not constitute a “request” to work. Employees must be able to accept or decline the request.

At Litton Legal, we’re experts in employment law. We can assist with all employment law matters, contact our friendly team here.