Given the public holidays that are fast approaching, members are reminded of the following matters arising out of section 114 of the Fair Work Act 2009 when requesting employees to work on a public holiday:
1. An employee is entitled to be absent from work on a day or a part-day that is a public holiday in the place where the employee is based for work purposes. However, an employer may request an employee to work on a public holiday, if the request is reasonable.
2. An employee may refuse to work on a public holiday if:
- the employer’s request to work on a public holiday is not reasonable; or
- the employee’s refusal to work on a public holiday is reasonable.
3. In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
- the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
- the employee’s personal circumstances, including family responsibilities;
- whether the employee could reasonably expect that the employer might request work on the public holiday;
- whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
- the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
- the amount of notice in advance of the public holiday given by the employer when making the request;
- in relation to the refusal of a request–the amount of notice in advance of the public holiday given by the employee when refusing the request; and
- any other relevant matter.
The circumstances of each employee should therefore be considered on a case-by-case basis when determining whether any refusal to work on a public holiday is reasonable.
Members who have any queries about these matters are welcome to call our member hotline on 1800 738 245 for assistance.