Many employers require staff to work public holidays in certain circumstances. This is routinely part of the written employment contract itself. Such a clause was fairly common and relatively uncontroversial until a Federal Court decision last year declared a similar clause contravened the National Employment Clauses requiring employees to work on public holidays in certain circumstances have been common and relatively uncontroversial in the past.
The right not to work on a public holiday – S.114 of the Fair Work Act
Section 114 of the Fair Work Act 2009 (FW Act) states that an employee is required to be absent on a day or part day of a public holiday. However, it also provides that:
- An employer has the right to request an employee perform work on public holidays and,
- An employee has the right to reasonably refuse that request.
When is a request to work and a refusal to work reasonable?
Section 114 sets out factors that must be considered when determining whether a request or refusal to work is reasonable. These include:
- the nature of the workplace (including operational requirements)
- the role and type of work of the employee does
- employee’s personal circumstances etc. caring or family responsibilities
- employment status (fulltime, part-time or casual)
- whether there is a reasonably expectation that an employee might be asked to work on the public holiday
- whether employees receive overtime, penalty rates or other payments that might reflect an expectation of working on the public holiday
- the amount of notice provided in advance of the public holiday given by the employer when making the request
- any other relevant factor.
If an employer’s request to work on a public holiday is reasonable and there is no reasonable basis to refuse is, the employee must work. If an employee’s refusal is reasonable however, they are entitled to be absent from work without loss of pay.
Recent guidance from the Federal Court on public holidays
In Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, the Federal Court considered a contractual provision which provided employees may be required to work on public holidays. The Court found the provision was inconsistent with the National Employment standards, even though the employer conducted its operations 365-days per year and the employee’s remuneration adequately compensated them for this requirement.
In summary, the Court provided the following guidance for employers:
- Employers should take a more consultative approach when rostering on public holidays
- Whilst employers can include public holidays as part of their rosters, the request must be made before circulating any final roster
- If you provide a draft roster, ensure that your employees understand that it is in draft form and that those employees rostered on public holidays need to either accept or refuse the shift to work on public holidays.
We recommend employers review their employment contracts to ensure any public holidays clause is compliant with Section 114 in light of the Court’s guidance in the CFMMEU case above.
Contact Coleman Greig’s Employment Law team for assistance in reviewing your employment contracts and enterprise agreements.
