Public holidays: To work or not to work?

A major Australian retailer has been fined for trading on a public holiday.

Public holidays: To work or not to work?

Despite being refused the right to trade on Boxing Day of last year by NSW Industrial Relations (NSW IR), JB Hi-Fi opened the doors of its Tamworth store on 26 December regardless.

According to NSW IR’s Statement of Facts, the electronic entertainment retailer applied on 16 November 2012 to open a number of stores on Boxing Day, including the recently launched Tamworth outlet.

The application was refused on 19 December due to no exceptional circumstances requiring the stores to be open, nor evidence of the store opening being in the public interest of the employees. This decision was published on the NSW IR’s website on 20 December.

JB Hi-Fi’s plea that they believed the store in question was exempt from the decision due to its location was rebuked by the NSW IR, and JB Hi-Fi was fined $500.

The case raises the question of when it is acceptable to trade on a public holiday and moreover, when is it acceptable to ask an employee to work?

Charles Power, Editor-in-Chief of Employment Law Practical Handbook, stated that the Fair Work Act permits requesting an employee works on a public holiday if the request is reasonable. Likewise, the employee may reasonably refuse.

 

Power highlighted the following as measure to assess whether a request or refusal to work on a public holiday is reasonable:

  • The nature of the workplace and work performed by the employee, such as hospital workers.
     
  • Personal circumstances of the employee (family responsibilities, etc.)
     
  • Whether the employee could reasonably expect to be asked.
     
  • If additional compensation such as overtime payments will be received.
     
  • The type of employment (full –time, casual, etc.)
     
  • The amount of notice in advance to the public holiday in question.

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