Requirement to work on a holiday
An employer may be faced with the refusal of an employee to work on the Queen’s Birthday public holiday. The Fair Work Act (s114) states that an employer may request an employee to work on a public holiday if the request is reasonable.
Likewise, an employee can refuse to work on a public holiday if the request from an employer is not reasonable or the refusal by an employee is reasonable. In the former situation, the onus of proof is on the employer, in the latter it is on the employee(s).
There is nothing in the Fair Work Act to support a proposition that employees can only be requested to volunteer to work on public holidays or that work on public holidays is prohibited.
In determining whether an employer’s request is reasonable, or a refusal of a request is reasonable, the following must be taken into account:
- the nature of an employer's workplace and the nature of an employee’s work
- an employee's personal circumstances, including family responsibilities
- whether an employee could reasonably expect an employer might request work on the public holiday
- whether an 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 an employee - for example, whether full-time, part-time, casual or shift work
- the amount of notice in advance of the public holiday given by an employer when making the request
- the amount of notice given by an employee when refusing a request to work on a public holiday.
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. In others, there will be a balancing exercise between factors.
The Explanatory Memorandum to the Fair Work Bill 2009 provides some examples to illustrate this point. Where an employee is employed in a workplace that requires a certain level of staffing on a public holiday (like a hospital) 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 commitments.
(Then) Fair Work Australia held that even if an employee does have good reasons for refusing his/her employer’s request to work on a public holiday if he/she does not explain those reasons to his/her employer then his/her refusal to work will not be reasonable. In other words, an employee must explain his/her reasons for refusing to work on a public holiday. It should be noted the tribunal also determined that the employee’s refusal to work on a public holiday was not a valid reason for dismissal, with the employee receiving compensation as a remedy.
Rostered day off (RDO)
A modern award may contain a provision which states that where a full-time employee’s ordinary hours are arranged to include an RDO and the day off falls on a public holiday, the employee is usually entitled, at the discretion of the employer, to either:
- 7.6 hours of pay at the ordinary time rate
- 7.6 hours of extra annual leave, or
- a substitute day off on an alternative weekday.
This provision does not apply in relation to days off that are part of an employee’s regular roster or pattern of ordinary hours.