Can an employer require someone to work on a public holiday?

Findings last week by the full Federal Court mean that many employers will need to change the way they have been approaching people working this Easter. Sean Melbourne from Source explains.

One of the National Employment Standards is that an employee is entitled to be absent from work on a public holiday.

However, an employer can request an employee to work on a public holiday if the request is reasonable.

An employee can refuse the rest if either:

➡ the request is not reasonable; or

➡ the refusal is reasonable.

There are eight factors that need to be taken into account when determining whether a request, or refusal of a request, is reasonable. They include the employer’s operational requirements, the nature of the employee’s work, whether public holiday work could be expected, the employee’s personal circumstances, whether the employee is entitled to adequate pay for working on a public holiday, whether they are full-time, part-time, casual or a shiftworker, and the amount of advance notice given.

The key word is “request” which, according to the full Federal Court, is very different to “require”. It means that an employer does actually need to request an employee to work on a public holiday. It can’t just direct them to work or roster them on without asking. They have to ask the question and leave room for discussion, negotiation and a possible refusal by the employee.

After doing this the employer can then require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable.

This creates a pretty big practical problem for employers who regularly roster employees to work on public holidays. This was brought to the court’s attention but it had little sympathy. It said that “all that is required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised.”

Similarly, it could be unlawful for an employer to have a clause in a contract that requires an employee to work on public holidays. The court did say that a contract could state that the employee may be asked to work on public holidays and may be required to do so where the request is reasonable and a refusal unreasonable. That is, the clause would need to leave room for the employee to refuse public holiday work if reasonable.

There’s a good chance that this decision could be appealed to the High Court. The High Court often overturns these types of decisions, but for now it’s the law and employers will need to work with it.