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In Australia, public holiday entitlements are covered by the Fair Work Act 2009 and are governed by the National Employment Standards (NES).
Depending on the individual’s employment status, different public holiday entitlements apply. Here’s what you need to know about public holiday entitlements in Australia.
Can an employee refuse to work on a public holiday?
Generally speaking, employees are entitled to receive payment for their regular work hours despite also being entitled to be absent from work on a public holiday. There are some exceptions, however, which mean employers are able to make reasonable requests for employees to work on public holidays. Similarly, employees can refuse a reasonable request to work on a public holiday so long as the refusal is reasonable or the request to work is deemed unreasonable.
How should an employer request an employee works on a public holiday?
Employers should be aware of any modern awards and enterprise agreements relevant to their business which may include provisions that deal with public holiday entitlements, bearing in mind that they cannot simply rely on those awards or agreements to require employees to work.
Employers are required to follow a formal procedure when they request that their employees work on a public holiday. Employers must seek the employees’ consent to work by initiating a formal request. Typically speaking, a request should be made of employees in the form of a question, so that the employee is left with a choice as to whether they will agree or refuse to work on the public holiday. Employees must be allowed to either accept or decline the request to work on the public holiday and should not be rostered on to work unless the employee agrees to work or a refusal has been discussed or negotiated to reach an acceptance.
If the request is reasonable and the employee refuses to work, the employer may still require the employee to work if the employee’s refusal is unreasonable.
Failure to make a genuine request may give rise to penalties per the Fair Work Act.
What is considered a reasonable request or refusal to work on a public holiday?
How reasonable a request or refusal to work on a public holiday will be determined by several factors, including the following.
- The type of business the employer is running and the employee’s role within the organisation. This is because in many industries, such as retail and hospitality, business continues on public holidays and it may be more common for employees to work on those days;
- the personal circumstances of the employee who is being asked to work, such as whether they have caring responsibilities;
- whether the employee will be compensated fairly and other working conditions;
- whether the employee is employed on a full-time, part-time or casual basis; and
- the type of notice and notice period provided by the employer or employee in relation to the respective request or refusal.
How can employers plan ahead for public holiday rostering?
Ahead of public holidays, employers would be prudent to:
- provide proposed rosters to employees well in advance of periods that include public holidays;
- remind any employees who are rostered on the public holidays of their entitlements and formally request that they work on those days; and
- ensure any request that is made is genuine.
In addition, employers should also make sure they understand their obligations under any relevant awards or workplace agreements which may include, for example, penalty rates being paid or days in lieu being offered for working public holidays.
If you need a deeper understanding of public holiday entitlements and advice on what is deemed a reasonable request or refusal, our experienced employment lawyers in Cairns can provide information specific to your business and employees.