Requesting Employees to work on Public Holidays

The High Court has confirmed that an employer can only request an employee to work on a public holiday, even if the employee has been rostered to so work. Therefore, if you do need someone to work on a public holidays you should follow the steps set out below:

1. Request the employee to work on the public holiday.

2. If the employee cannot work they should provide reasons.

3. Take into account the employee’s reasons and whether it is still reasonable to require the employee to actually work on the public holiday (see below).

4. Check the award and contract of employment. If the contract does require the employee to work this is relevant but not decisive.

5. Advise the employee of your decision. 

When determining whether to accept or refuse the employee’s response, these are the factors that need to be considered:

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. A positive obligation in a modern award, enterprise agreement or employment contract will be relevant but not decisive;

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;

The relevant public holidays that are coming soon are:

• Christmas Day – Monday 25 December

• Boxing Day – Tuesday 26 December

• New Year’s Day – Monday 1 January

• Australia Day – Friday 26 January