Requiring Employees to Work on Upcoming Public Holidays: Christmas, New Year, and Australia Day Periods – What You Should Be Aware Of

As a reminder, if you want people to work on the upcoming public holidays, you need to request that employees work on a public holiday first urgently.

Working on a public holiday is governed by the National Employment Standards (Fair Work Act). Under the standards, an employee can be absent on a Public Holiday. However, the employer may request an employee to work on a public holiday if the request is reasonable.

The decision of the Federal Court's Full Bench recently affirmed this, and the following paragraph from the decision provides a succinct interpretation: “In this Court’s view, a “request” within the meaning of s 114(2), connotes its ordinary meaning; an employer may make a request of employees in the form of a question, leaving the employee with a choice as to whether he or she will agree or refuse to work on the public holiday. Ultimately, after discussion or negotiation, the employer may require an employee to work on a public holiday if the request is reasonable and the employee’s refusal is unreasonable.”

To meet the NES provisions for employees to work on a Public Holiday, a two-phased approach should be taken: Step 1: Communicate to employees the request for them to work on the public holiday. Step 2: Understand each employee's stance on working on public holidays or not. Then work through rostering employees. If an employee refuses the request, work through the situation based on the reasonableness of the rejection by the employee, such as a legitimate personal situation. If you are not sure, the best bet is to get some advice.