The Full Federal Court of Australia has ruled that employers cannot require employees to work on public holidays and can only request that employees work on public holidays. This is irrespective of whether the employee’s employment contract, modern award, or enterprise agreement requires work to be performed on a public holiday.
The Fair Work Act makes it clear that employers do not have an unqualified right to simply roster or mandate employees to work on public holidays.
The employers will need to make a request to the employees which gives the employee a choice to work the shift or not. The request by the employer needs to be reasonable. If the request by the employer is reasonable, the employee can only refuse to work on the public holiday shift if the refusal is reasonable.
Whether a request or refusal is reasonable depends on individual facts and circumstances. There are several matters to be considered when assessing if a request or refusal is reasonable, such as:
- nature of the employer’s workplace, including its operational requirements;
- nature of work performed by the employee;
- employee’s personal circumstances, including family responsibilities;
- whether employee is entitled to receive overtime payments, penalty rates, or other compensation for working on the public holiday;
- type of employment of the employee. For example, full-time, part-time, casual, or shiftwork;
- amount of advance notice given to the employee when making the request; and
- any other relevant matter.
It is a common practice to roster employee shifts on a public holiday and assume that generous public holiday rates mean employees are willing to accept these rostered shifts. The new precedence set by the Full Federal Court’s decision means you cannot mandate employees to work on public holidays without first seeking the employees’ agreement. This is the case even if the employee’s contract or enterprise agreement or award suggests that the employee may be required to work certain public holidays.
Simply rostering employees to work on public holidays is not enough. You need to have a discussion or negotiation with the employees.
You will need to make the employees aware of their genuine right to refuse the proposed rostered shift if their refusal is reasonable.
You need to be comfortable that any request made to work on a public holiday is reasonable.
You need to take active steps to confirm the employees’ acceptance of the requested shifts.
You must consider the processes in place to seek employees’ agreement to work on public holidays.