Public Holidays

In Australia, public holidays are intended to be days for workers to rest and enjoy themselves. Some public holidays exist to mark important milestones or historical events, such as ANZAC and Labour Day, which provide an opportunity for workers to participate in commemorative activities. While employers are legally allowed to ask an employee to work on a public holiday, if the employee refuses to work on reasonable grounds, their employer cannot hold this refusal against them. This article looks at the nature of public holidays in Australia and the legal framework for public holiday pay, as well as a worker’s right to refuse to work on these days.

Entitlement to public holidays

Under the Fair Work Act 2009, all employees in the national workplace relations system are entitled to the benefit of public holidays. This entitlement is part of the National Employment Standards and applies regardless of the terms of the worker’s employment contract or applicable modern award or registered agreement.

In many cases, a business or workplace does not operate on the public holiday, and so no workers are required to attend on that day. However, there are many industries and businesses which cannot close down, or choose not to do so. These businesses need staff to enable them to operate. This creates a tension point between the legal entitlement of workers to have a day of rest and the employer’s need to have an available workforce.

Reasonable refusal

Employers may ask employees to work on a public holiday, but the employees have the right to refuse the request on reasonable grounds. Employees are legally protected from adverse action if they reasonably refuse to work on a public holiday.  When an employer does not comply with this requirement, they are liable for significant consequences, including financial penalties for contravening the NES.

There are a number of factors that determine whether a request or refusal to work on a public holiday is reasonable. For instance, the following factors are relevant:

• the nature of the employee’s work and the employer’s enterprise, including operational requirements
• the employee’s status, such as whether they are a full-time, part-time, casual or shift worker
• the amount of notice the employee gives of their refusal to work
• the employee’s circumstances, including their carer and family responsibilities
• whether the employee might reasonably expect that they would be asked to work
• the extent of notice that the employer gave in advance and
• whether the employee is entitled to penalty rates, overtime payments or other compensation.

Public holiday pay and leave

Permanent employees who do not work on a public holiday are paid their standard pay rate for the hours they would ordinarily work on that day. When a full or part-time employee works on a public holiday, they are usually paid a penalty rate that is higher than their standard rate of pay. If the holiday falls during a time that the employee is on annual or personal leave, then that day does not reduce the employee’s leave balance.

Case study

The Federal Court of Australia recently considered whether an employer can require an employee to work on a public holiday. In Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023], the Full Bench held that employers cannot unreasonably require employees to work on public holidays even if they would normally be scheduled to work that day. The case was brought on behalf of 85 employees who worked a standard shift of 12.5 hours at a Queensland mine on Christmas and Boxing Day in 2019. The employees were rostered to work these hours as normal but did not receive a penalty rate. The company did not ask the employees to work on those days; rather, it assumed that they would work unless the company granted them leave. Also, the company did not inform the employees that they had the legal right to refuse (on reasonable grounds) to work on public holidays. The labour union appellant in the case, CFMMEU, contended that the employer had contravened the employees’ entitlements under the National Employment Standards.

The case turned on the definition of ‘request’ in the Fair Work Act. The Full Court decided that the word has its ordinary meaning. Under this interpretation, an employer can ask an employee to work on a public holiday, and the employee has a choice to agree or refuse. Merely rostering an employee to work does not constitute a request. In fact, the court found that an employer should only ask the employee to work if the request is reasonable in the circumstances and it would be unreasonable for the employee to refuse. As the respondent did not request the employees to work on the public holidays, they were in breach of the Act.

In its decision, the Full Court emphasised that the provisions of the Fair Work Act override any terms of an enterprise agreement or contract that requires employees to work on public holidays. This case has broad implications for all employers who require employees to work on public holidays. The decision in this case clarifies that employers must expressly request employees to work on public holidays and allow them to refuse on reasonable grounds. Please phone Go To Court on 1300 636 846 for advice about this or any other employment law matter.