As we approach the busy end-of-year public holiday period, it’s essential for employers, especially those operating 24/7 services, shift-based environments, healthcare, hospitality, mining and resources, and other essential operations, to ensure compliance with public holiday staffing requirements. Recent case law has reinforced that employers cannot assume an employee will work a public holiday. A lawful and compliant process must be followed.

What the law requires

Under both the Fair Work Act 2009 (Cth) and the Minimum Conditions of Employment Act (WA), employers are required to follow a request and refuse framework. This means:

1. You must request – not require – employees to work a public holiday

A roster that automatically places someone on a public holiday shift is not enough. It must be clear that the employee has been asked, not directed.

2. Employees have the right to accept or reasonably refuse the request

Likewise, your request must also be reasonable.

What factors are considered when determining reasonableness?

  • The nature of your operations (e.g., essential 24/7 services)
  • The employee’s personal circumstances, including family responsibilities
  • Employment type (full-time, part-time, casual)
  • Whether the employee could reasonably expect to work public holidays
  • Staffing requirements and operational needs
  • Penalty rates and compensation offered

Why this matters

Failure to follow the proper reuest process can expose employers to serious risks, including:

  • Breaches of the Fair Work Act
  • Financial penalties
  • Claims under General Protections provisions
  • Employee grievances or disputes
  • Increased workplace tension during an already busy period

Recent decisions have made it clear, automatically rostering employees on public holidays is not compliant, and statements like “you are required to work” are insufficient.

What employers should do now

To ensure compliance ahead of the upcoming public holidays, we recommend:

Issue a written request – Ask employees who may be needed to work. This should be clear and distinguishable from a direction.

Explain your operational reasons – Particularly important for 24/7 and essential services.

Invite employees to raise any concerns – Employees must be given the opportunity to refuse, with reasonable grounds.

Confirm applicable penalty rates – Remind employees of the rates or loadings that apply under the relevant Award or Agreement.

Keep written records – Documenting the exchange is critical if you ever need to demonstrate compliance.

We’re here to help

If you’d like support preparing for the upcoming holiday period, we can assist with:

  • A compliant Public Holiday Work Request Letter
  • Email templates or manager scripts
  • Advice on assessing whether a refusal is reasonable
  • Guidance for businesses with continuous operations or unique rostering challenges

Please get in touch with our team if you need assistance or would like tailored advice. Find our articles helpful? Remember to follow us on Facebook, Instagram or LinkedIn to keep up to date with our practical tips and information for business owners and managers.