Almost every Aussie worker looks forward to a public holiday, it’s an opportunity for a long weekend or a longer break between working days. Questions about public holidays and employees working them come in volumes as they get closer on the calendar. Our 24/7 HR Advice Line answer more than and with recent law changes this festive season, we’re expecting it to be a lot more.

It was in April this year that a Full Court of the Federal Court of Australia ruling reminded employers that they can only request that their employees work on a public holiday and that the employee can refuse such a request if the refusal is reasonable. And now that the festive season is almost here and public holidays are a dime a dozen, here’s your employer’s guide to understanding public holiday request and refusal rights and how to manage them compliantly.

The crux of the case: Construction, Forestry, Maritime, Mining and Energy Union vs OS MCAP Pty Ltd [2023] FCAFC 51

In 2019, a BHP shelf company in Queensland required their 85 mining employees to work 12.5-hour shifts at the Daunia Mine on Christmas Day and Boxing Day. The employees’ contracts allowed for working on public holidays, and payment for such work was already included in their salaries.

Ahead of the Christmas holiday period, the employer informed employees that only six workers could be absent per shift and randomly selected employees who could be absent on those days. The employer never asked employees if they were willing to work on Christmas or Boxing Day, and there was an assumption that those who were rostered for work on those days would work unless they applied for leave and it was granted.

But what about the legislative framework?

Did you know that the Fair Work Act 2009 (Cth) (FW Act) entitles an employee to be absent from work on a day or part day that is a public holiday? This right is enshrined in section 114 of the FW Act, and the only exception to this is where the request from the employer is reasonable and the employee’s refusal isn’t reasonable.

So, what was the decision?

The company, which operates 24/7, argued that its request for employees to work on public holidays was justified due to operational needs. The employer contended that employees were aware of this requirement before joining, citing contract clauses and the risk of not meeting contractual obligations if machinery operation hours were reduced.

In the ruling, the judge sided with the company, stating that the Fair Work Act’s section 114 applied not only to requests but also to requirements by employers, especially when operational demands necessitated employee presence on public holidays.

In the first instance, the primary judge ruled in favour of the company on the basis that its requirement that their employees work on public holidays was equivalent to a request to work, and as it was reasonable given the need to operate shifts on those public holidays. However, on appeal, the Full Court determined that a “request” for the purposes of section 114 of the FW Act is the employee having a choice whether or not to work the public holiday and that a “request to require” was not a request within the ordinary meaning of that term. The Court found that there was undisputed evidence which indicated that the employer never made a request to their employees, but rather, assumed that those employees rostered to work on those days would work on those days unless they applied for leave and it was granted. Therefore, the Court found that the employer had breached section 114 of the FW Act. BHP, on behalf of the company, sought special leave to contest the Full Court’s decision, however, the High Court rejected this request.

What’s what when it comes to reasonable and unreasonable refusal? 

The FW Act states what constitutes a reasonable request. According to section 114 (4) of the FW Act, in determining whether a request or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:

1. The nature of the employer’s workplace or enterprise (including its 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 shift work);
6. The amount of notice in advance of the public holiday given by the employer when making the request;
7. The refusal of a request – the amount of notice in advance of the public holiday given by the employee when refusing the request; and
8. Any other relevant matter.

Key take aways  

When considering the relevant take-away points arising from a decision, one must consider the relevant circumstances of the case. In this decision, the employee’s employment contract stated that “you may be required to work on public holidays.” The employer then subsequently rostered employees on public holidays and assumed they would work unless they applied for leave.

Where the employer went wrong in this instance, is the fact that the employment contract stated that an employee “may be required to work” and then the employer rostered the employee on without allowing them the opportunity to discuss their acceptance to work on a public holiday. In circumstances where the employment contract states, “the employer may request that you work on a public holiday and you may refuse the request if you have, reasonable grounds for doing so,” then the contractual stance is not that the employer is “requiring” that an employee work on a public holiday, but instead makes clear they may be requested to do so.

The Full Court made clear that “an employer is able to have a roster which includes public holidays. 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, a contract may contain a provision foreshadowing that the employees may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable. 

How should my business manage unreasonable refusal?

If an employer has deemed an employee’s refusal to work on a public holiday as unreasonable, it’s recommended to proceed with negotiations to find an arrangement that works. Once the business has attempted negotiation and further discussion, it’s only at this point, and in line with the Court’s view, that ‘the employer may require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable.’

We recommend employers follow the guidelines in our in-depth analysis of this case here.

About our authors

Amanda Curatore is a qualified Solicitor at Citation Group. Amanda is highly experienced in providing workplace relations advice and assistance to clients in a wide range of matters including employment contracts, modern award interpretation, managing performance, bullying and harassment, terminations, and managing risk.

Zaynab Aly is a Senior Workplace Relations Consultant at Citation Group. Armed with her law degree, she has a particular interest in the retail industry and regularly provides advice on workplace matters to find solutions for clients.