With the Easter public holiday approaching, it is important to remember that employees should have the option to choose whether they work on a public holiday or not. Furthermore, any request for an employee to work must be reasonable. So, what exactly is required of employers when it comes to employees and public holidays?

What are my obligations when it comes to public holidays under the NES?

The NES entitles employees to be absent from work on a public holiday. However, it also provides the following exceptions:

  • An employer may “request” an employee to work on a public holiday if the request is reasonable; and
  • An employee may refuse the request if the request is unreasonable or if the refusal to work is reasonable.

There are several factors that must be considered when determining if a request, or refusal of a request, to work on a public holiday is reasonable. These include:

  • The nature of the employer’s workplace, 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.

Employees must be provided with a choice

The starting position is that an employee is entitled to be absent from their employment for a day or part day that is a public holiday. This protection under the NES cannot be displaced, regardless of contractual or enterprise agreement obligations

However, an employer may make a request of employees in the form of a question, leaving the employee with a choice as to whether they 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.

There can be significant consequences for employers who do not comply with these requirements.

When can I request an employee to work on a public holiday?

An employer can ultimately require an employee to work on a public holiday if they are involved in critical services or where it is desirable, although not critical, to remain open on public holidays provided the employer has met its obligations under the NES.

An employer can also have a roster which includes public holidays. All that is required is that the employer ensures that employees understand either that:

  • The roster is in draft and employees who have been allocated to work on a public holiday can indicate whether they accept or refuse the public holiday work; or
  • A request is made before the roster is finalised.

Similarly, a contract may contain a provision outlining that an employee may be asked to work on public holidays and may be required to do so where the request is reasonable and a refusal unreasonable.

What can I do to ensure compliance with my public holiday obligations?

Employers should ensure that any request for an employee to work on a public holiday is reasonable and any refusal of an employee to work on a public holiday is reasonable. Employers must also give urgent consideration to existing and future requirements for employees to work on public holidays (including in rosters, contracts, and enterprise agreements), as such requirements may be in breach of the NES.

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