The Fair Work Act 2009 ( s114) states that an employer may request an employee to work on a public holiday if the request is reasonable. Likewise, the employee can refuse to work on a public holiday if the request from the employer is not reasonable or the refusal by the employee is reasonable.
In the former situation, the onus of proof is on the employer, while in the latter it is on the employee(s). There is nothing in the Act to support the idea that employees can only be requested to volunteer to work on public holidays or that work on public holidays is prohibited.
How do you determine whether an employer’s request — or an employee’s refusal — is reasonable?
The Fair Work Commission’s test is as follows:
- the nature of the employer’s workplace and the employee’s work
- the employee’s personal circumstances, including family/carer responsibilities
- whether the employee could reasonably expect the employer might request work on the public holiday
- whether the employee is entitled to receive overtime or other penalty payments or other compensation that reflects the expectation to work on public holidays
- the type of employment of the employee (e.g. full-time, part-time, casual or a shift worker)
- the amount of notice given by the employer when making a request
- the amount of notice given by the employee when refusing a request.
The relevance of each of these factors and the weight to be given to each will vary according to the particular circumstances. In some cases, a single factor will be of great importance and outweigh all others, while in others there will be a balancing exercise between factors.
Where an employee is employed in a workplace that requires a certain level of staffing on a public holiday and has been given warning of the likelihood of being required to work on public holidays, a request by an employer to work may be considered reasonable.
On the other hand, a refusal by an employee of a request to work on a public holiday may be reasonable where, for example, the employee has notified the employer in advance that he or she will not be able to work on the public holiday because of family responsiblities .
Family responsiblities may include
- Caring for children
- Travel with family
- Family social events
- Looking after elderly family members
If you are asked to work on a public holiday but are unable to due to family responsibilties , ensure you give management sufficient notice after the request to work has been made.
Remember that if you do work any public holidays then ensure you receive the public holiday loading of 250% and do not be conned into swapping any public holidays, including the Authorised Holiday, for another day later down the track.
Contact us directly on 03 9387 0189 if you need any further advice.
