Can employees be required to work on Public Holidays?

The Fair Work Act 2009 (Cth) (‘FWA’) entitles employees to a paid day away from work on public holidays. However, pursuant to section 114(2) of the FWA an employer can ‘request’ an employee to work a public holiday where reasonable. Whether ‘request’ should be interpretated as ‘requirement’ was recently deliberated by the courts in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023]. This case confirmed that employers cannot automatically schedule employees to work on public holidays as the court confirmed a ‘request’ should be made in the form of a question leaving the choice to work open to the employee. The Court confirmed that the request is an intention to prompt a discussion as opposed to a unilateral demand.

However, the Court’s interpretation still reinforced that an employer involved in critical services, or where it is desirable for the business to remain open, can require employees to work on public holidays as long as:

• the employer has made a request for an employee to work on a public holiday;
• that request is reasonable; and
• the request is made in circumstances where an employee’s refusal is not reasonable.

Do employers require the consent of employees to work on public holidays?

Employers require the consent of their employees to work on public holidays as section 114(3) of the FWA provides than an employee can refuse to work on a public holiday, if the request to work is unreasonable. Further, as confirmed in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] an employer’s request of an employee to work a public holiday should take the form of a question which allows the employee to make a decision on.

What is deemed as a reasonable request by an employer to work on a public holiday and when is it reasonable for an employee to say no?

Section 114(4) of the FWA outlines what is considered when determining both whether an employer’s request and an employee’s refusal are reasonable. This will depend on factors including:

• The nature of the employer’s workplace or enterprise, and the nature of the work performed by the employee.
• The employee’s individual and personal circumstances, such as family or carer responsibilities.
• Whether the employee could reasonably expect that the employer might request work on the public holiday.
• Whether the employee is entitled to receive overtime payments, penalty rates or other compensation for work on the public holiday.
• The type of employment of the employee (e.g. full time, part time, casual or shift work).
• The amount of notice in advance of the public holiday given by the employer when making the request, or the amount of notice in advance of the public holiday given by the employee when refusing the request.

What Act/s do employers need to be aware of when it comes to requiring employees to work on public holidays?

Employers need to be aware of the provisions set out in section 114 of the FWA as well as any additional requirements set out in a relevant modern award or enterprise agreement. Employers should also have regard to the Court’s findings in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] which reiterate the position at law when it comes to requesting employees to work on public holidays.