Can You Require Employees to Work During Public Holidays?

In a recent case, The Federal Court of Australia has ruled that employers cannot force employees to work on public holidays without their consent, even if it is in their contracts.

The ruling came after the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) appealed a case to the Federal Court, arguing that an employer breached the National Employment Standard by “requiring” employees to work on public holidays instead or “requesting” they work. The Court upheld the National Employment Standards (NES), which require employers to make reasonable requests for employees to work on public holiday and ruled that a roster or contractual requirement alone does not constitute such a request.

Employers can request their employees to work on public holidays, but only if it is reasonable to do so. In accordance with the National Employment Standards, an employer is to:

• Provide reasonable notice of the request.
• Discuss the request with the employee.
• Consider the employee’s circumstances when making the request.
• Acknowledge that the employee has the right to refuse, and when they do so, the employer cannot take adverse action (i.e., disciplinary action or reducing the number of shifts) against them.
• Pay penalty rates to an employee who agrees to work on a public holiday, as per the relevant industrial instrument (an Award or Enterprise agreement).

Employers who need their employees to work during public holidays must comply with all relevant legislation and regulations regarding public holiday work to reduce legal consequences. This case may go to an appeal, but until then, this will be the basis for an employee working on a public holiday.

For further information and assistance, please contact our HR team on 07 3273 0800.