Working on Public Holidays: Confirmed Federal Court Position

A significant Federal Court of Australia decision continues to guide how employers manage public holiday work. In CFMMEU v OS MCAP Pty Ltd [2023] FCAFC 51, the Full Court ruled that employers cannot require employees to work on public holidays without their agreement, even if this is stated in contracts or rosters.

Under section 114 of the Fair Work Act 2009 (Cth), employers must request—not direct—employees to work on a public holiday. Employees may refuse the request if that refusal is reasonable, considering their personal circumstances and the nature of the work.

Current Legal Status

• The employer appealed the ruling, but in 2024, the High Court declined to grant special leave, confirming the Full Court’s interpretation.
• There have been no legislative amendments to section 114, and no subsequent decisions have altered this position.
• The decision remains binding across Australia, including Queensland.

Employer Obligations When Requesting Public Holiday Work

Employers must:

• Give reasonable notice of the request;
• Discuss the request with the employee;
• Consider the employee’s personal and family circumstances;
• Recognise the employee’s right to refuse if their refusal is reasonable;
• Avoid adverse action if the employee declines; and
• Apply correct penalty rates under the relevant award or enterprise agreement if the employee agrees to work.

Practical Steps for Compliance

To ensure adherence to the NES, employers should:

1. Review rosters and employment contracts to ensure they do not imply a direction to work on public holidays.
2. Keep written evidence of public holiday requests and employee responses.
3. Ensure payroll systems correctly apply public holiday penalties.

Key Takeaway

Public holiday work must be arranged through a reasonable request-and-refusal process, not a requirement. Employers should ensure their practices are consistent with the settled legal position.

For further assistance, please contact MPAQ’s Advisory Services team on 07 3273 0800.