In Short
- Employees are generally entitled to be absent on public holidays. Employers can request work on these days, but the request must be reasonable, considering factors like the nature of the work and the employee’s personal circumstances.
- Employees can refuse to work on a public holiday if the request is unreasonable or if their refusal is reasonable. Factors include personal circumstances, the nature of the work and the amount of notice given.
- If employees agree to work on a public holiday, they are entitled to penalty rates as specified in their relevant award or enterprise agreement. These rates vary by industry and employment type.
Tips for Businesses
When requesting employees to work on public holidays, provide ample notice and consider their personal situations. Ensure compliance with relevant awards or agreements regarding penalty rates to avoid legal issues. Clear communication and fairness can help maintain good workplace relations.
Public holiday requirements fall under the National Employment Standards (NES), which dictates that employees have a choice whether or not to work on a public holiday. Your employment contracts need to comply with the NES, and you cannot contract out of the entitlements the NES provides to employees. If your employment contracts contravene the NES, you may face penalties under the Fair Work Act 2009. Therefore, although you may request an employee to work on a public holiday, you cannot require it. This article outlines situations where a full-time or part-time employee can refuse to work and employers’ obligations concerning public holidays.
What is Considered a Public Holiday?
The Fair Work Act sets out what a public holiday is. The Act lists:
- New Year’s Day (1 January);
- Australia Day (26 January);
- Good Friday;
- Easter Monday;
- Anzac Day (25 April);
- King’s Birthday, which varies depending on the State or Territory;
- Christmas (25 January);
- Boxing Day (26 January); and
- any other day prescribed under law as a public holiday in each State or Territory.
Can My Employee Refuse to Work on a Public Holiday?
The National Employment Standards (NES) provide protection to an employee’s right to refuse to work on a public holiday. This means that, for eligible employees, you must still pay them if they are absent from work because it is a public holiday. The NES also prohibits employers from taking any action against an employee who reasonably refuses to work on a public holiday.
When an employee refuses to work on a public holiday, the reasonability of their decision depends on various factors. As an employer, you need to consider the following questions before making any decisions:
- What is the nature of your business, and how does it operate on holidays?
- What kind of work does the employee perform, and how crucial is it for the company’s operations on a public holiday?
- What are the employee’s individual circumstances, including their personal responsibilities and family obligations?
- Is it reasonable for the employee to assume that you would require them to work on public holidays?
- Does the employment type of the worker, whether it be part-time, full-time, casual, or shift work, affect their obligation to work on holidays?
- How much notice did you give to the employee before making the request, and how much notice did the employee provide to you before declining the request?
If your business routinely opens on public holidays, it might be reasonable to expect to work on that day. If you give employees advance notice, requesting them to work on a public holiday can still be considered reasonable.
As an employer, it is essential to understand what employment laws have changed and their implications for your business — particularly the changes to the Fair Work Act 2009 through the new Closing the Loopholes legislation.
How Much Do I Have to Pay an Employee if They Do Not Work on a Public Holiday?
If an employee chooses not to work on a public holiday, you must generally pay them, excluding casual employees. This applies if the holiday falls on a day they would normally work. However, employees are only entitled to their base rate of pay for their ordinary hours, without:
- additional bonuses;
- overtime; or
- penalty rates.
Queensland Nurses’ Union of Employees v Ramsay Health Care Australia Pty Ltd [2016]
This case clarified the circumstances under which employers must pay employees for public holidays under Section 116 of the Fair Work Act.
The dispute involved four nurses who claimed their employer breached Section 116 by failing to pay them for a public holiday when they were not scheduled to work. The nurses argued that because their nurse unit manager had the authority to roster them on, they should be entitled to payment, even though they were not actually scheduled to work.
The Court ruled that Section 116 did not apply in this case. It found that the nurses had not been rostered to work on those public holidays for the past four years, and their ordinary hours of work did not fall on the public holiday. Additionally, their enterprise agreements and employment contracts did not require them to be available for public holiday shifts.
Key Takeaways
If you need your employees to work on a public holiday, make sure you give them enough notice to consider your request. If they refuse, consider the circumstances in determining whether their refusal is reasonable. Also, make sure that your employment contracts comply with the NES.
If you need help drafting your employment contracts, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
You are allowed to ask your employees to come in to work despite it being a public holiday. However, they also the right to reasonably refuse this request.
If the public holiday falls on a day the employee usually works, you must pay them their base pay rate for their ordinary hours of work.
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