When reviewing employment contracts and enterprise agreements, we routinely come across provisions requiring an employee to work on a public holiday in certain circumstances. These provisions were commonplace and not especially concerning until earlier this year, when the Federal Court held that such a provision contravened the National Employment Standards (see matter below).

In gearing up for a run of public holidays, employers need to be cautious when seeking to rely on such a provision, as the National Employment Standards and the Fair Work Act will override it. 

What does the Fair Work Act say about work on public holidays?

Section 114 of the Fair Work 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:

1. An employer has the right to request an employee perform work on a public holiday
2. 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 which must be taken into account when considering whether a request or refusal to work is reasonable. Those factors include:

1. the nature of the employer’s workplace or enterprise (including operational requirements), and the nature of the work performed by the employee;
2. the employee’s personal circumstances, including family responsibilities;
3. whether the employee could reasonably expect that the employer might request work on the public holiday;
4. 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;
5. the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
6. the amount of notice in advance of the public holiday given by the employer when making the request;
7. 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;
8. any other relevant matter.

If an employer’s request to work on a public holiday is reasonable and there is no reasonable basis to refuse the request having regard to these factors, the employee is required to work. However, if an employee’s refusal is reasonable, they are entitled to be absent from work without loss of pay.

Recent guidance from the Federal Court on public holidays

Earlier this year, a Federal Court decision considered the circumstances in which an employee can be directed to work on a public holiday and provided some crucial guidance for employers to follow.

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 are still able to include public holidays as part of their rosters, they must ensure that the request is made before any final roster is circulated.
• 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.