An employee’s right not to work on public holidays

It can be very difficult for businesses, especially those operating 24 hours, 7 days a week, to ensure their workforce is properly resourced throughout the year.
With this, public holidays can present a real issue. Employees often expect to spend public holidays with their family and friends and perhaps have a long weekend away, but despite this, businesses need to continue operating, and require adequate staffing to do so.
So, what powers do employers have to require their employees to attend work on public holidays?
In March 2023 the Federal Court in Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v OS MCAP Pty Ltd [2023] FCAFC 51 unanimously confirmed that if an employer wants an employee to work on a public holiday, the employer must specifically request the employee to work on that day and must give the employee the opportunity to accept or refuse the request. This requirement is set out in ss 114(2) and (3) of the Fair Work Act 2009 (Cth). 
In the case, a group of employees worked a roster of 7 days on and 7 days off, with their 7 day roster period including the Christmas and Boxing Day public holidays. The employer told the employees they were required to work on those days unless a leave form had been submitted and approved.
Consequently, the employer received an influx of leave requests for the Christmas period.  As the business required a certain number of staff to be at work 24 hours a day in order to operate, the employer approved a random selection of employees’ leave requests and told the remaining employees they had to work the public holidays. The court found that the employer did not give those employees a choice to work the public holiday, rather it required them to.
A request, not a command
Employers can ask employees to work public holidays in various ways, including:
  • publishing a draft public holiday roster (well in advance of the public holidays) and making it clear to employees who have been assigned to work on public holidays that they can accept or reject the roster;
  • putting out a call for volunteers to work particular public holiday shifts; or
  • implementing a system allowing employees to submit an “opt-in” request for particular public holidays.

Employers cannot require or demand that employees work on a public holiday, even if the public holiday falls within an employee’s usual roster or set work hours, or the employee will receive penalty rates or overtime for working the public holiday.
An employer’s request for an employee to work on a public holiday must be ‘reasonable’ in the circumstances for example:
  •  their business operations require;
  • they have given the employee enough notice in advance of the public holiday; or
  • they are offering to pay the employee penalty rates or overtime to work the public holiday.

The employee’s employment status i.e., casual or full-time, must also be considered.
On the other hand, an employee’s refusal to work a public holiday must also be reasonable, for example:
  • due to personal circumstances such as family responsibilities;
  • the employer did not give enough notice in advance of the public holiday; or
  • they are not receiving penalty rates or overtime to work the public holiday.
Employers should review their employment agreements to ensure that any provision in dealing with public holidays does not specify that employees are, or may be, required to work on public holidays
Employers can face fines up to $16,500 for an individual and $82,500 for a corporation if they are found to have required an employee to work a public holiday without first asking them, and then receiving their response.
We recommend that professional advice be sought to ensure your employment agreements and public holiday rostering practices are appropriate.
Please contact Hicksons’ Partner, Warwick Ryan, at [email protected] should you need any assistance or guidance.

Article written by Hicksons' Partner, Warwick Ryan and Senior Associate, Helen Sexton.

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