When can you require an employee to work a public holiday?

Requiring an employee to work on a public holiday is an unpleasant reality for many employers throughout Australia this holiday season – what are your rights if they refuse?

Your organisation may require staff to work on the upcoming public holidays* – the Fair Work Act sets out the conditions by which employers must abide, and your rights if an employee refuses to work.

According to employment law experts at Norton Rose, the Fair Work Act provides that an employer may request an employee to work on a public holiday if the request is ‘reasonable’. The employee may refuse a request if it is unreasonable or their refusal to work is reasonable.

Section 114(4) sets out a number of factors that are to be taken into account in determining whether a request or refusal of a request is reasonable including:
 

  • The nature of the employer’s workplace or enterprise and the nature of the work performed by the employee.
     
  • The employee’s personal circumstances (including any family responsibilities).
     
  • Whether the employee could reasonably expect that the employer might request work on a public holiday.
     
  • Whether the employee is entitled to receive overtime, penalty rates or other forms of compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday.
     
  • The type of employment of the employee (ie. full-time, part-time, casual or shiftwork).
     
  • The amount of notice in advance of the public holiday given by the employer when making the request.
     
  • In relation to the refusal of a request, the amount of notice in advance of the public holiday given by the employee in refusing the request.

Disciplining an employee for refusing to work on a public holiday

In cases where an employee refuses to work on a public holiday and an employer takes disciplinary action as a result, there is a risk that the employee may commence complaint proceedings.

If an employee was dismissed as a result of refusing to work, they may file an unfair dismissal claim. Alternatively, if alternative disciplinary action was taken, an employee may make an adverse action claim, on the grounds they had been adversely affected by exercising their workplace right to refuse to work on a public holiday.

*The national public holiday dates are Tuesday 25 December (Christmas Day), Wednesday 26 December (Boxing Day) and Tuesday 1 January (New Year’s Day).

Learn more about public holidays in Australia here.

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