Requiring employees to work on Public Hoildays - Part 1

Posted by Malcolm Campbell on 23 October 2014

In this week’s blog we navigate through the issues of working on Public Holidays as relevant for both employers and employees. 

The Fair Work Act sets out the rules and regulations as to working on Public Holidays. Section 114 of Act says:

(1) An employee is entitled to be absent from his or her employment on a day or part-day that is a public holiday in the place where the employee is based for work purposes.”

As you can see, section 114(1) begins by giving an entitlement to employees. However, this is followed by a list of clarifications, which need to be considered when looking at the issue. In essential it comes down to whether the request to work or refusal to work is “reasonable”. The balance of section 114 states: 

“Reasonable requests to work on public holidays”

(2) However, an employer may request an employee to work on a public holiday if the request is reasonable.
(3) If an employer requests an employee to work on a public holiday, the employee may refuse the request if:
a) the request is not reasonable; or
b) the refusal is reasonable.
(4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
b) the employee’s personal circumstances, including family responsibilities;
c) whether the employee could reasonably expect that the employer might request work on a public holiday;
d) whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
e) the type of employment of the employee (for example, whether full time, part-time, casual or shiftwork;
f) the amount of notice in advance of the public holiday given by the employer when making the request;
g) in relation to the refusal of a request- the amount of notice in advance of the public holiday given by the employee when refusing the request;
h) any other relevant matter.”

As you can see there are various competing interests that must be considered in determining if an employer has made a reasonable request with reasonable notice for an employee to work on a Public Holiday. Further, the employee is also required to act reasonably with a refusal of the particular request. 

The issue is then who determines what is reasonable? At first instance it is the employer and the employee. If there is no agreement the Fair Work Ombudsman man be requested to provide assistance with the matter. If no agreement can be reached then ultimately the Federal Circuit Court will make a determination on the issue (if a party makes an application for the court to determine the matter).

If you have any concerns in as to working on Public Holidays please contact our Workplace Law team.

In part two we will briefly look at issues that may arise out of disciplining an employee for refusing a request to work a Public Holiday.