How To Ensure Compliance When It Comes To Working On Public Holidays

Employers whose businesses continue to operate over public holidays should be aware that there are requirements they must abide by when seeking employee cooperation to work on those holidays under s114 of the Fair Work Act 2009 (Cth).

How can an employer ensure compliance when requesting an employee work on a public holiday?

If an employer requires employees to work on a public holiday the key to ensuring compliance with employment laws is to ensure that a request, rather than a direction, is made for the employees to work and that the request is reasonable.

An example of how this can be done includes:

• creating a draft roster to circulate to the employees being requested to work on the relevant public holiday, in addition to an explanation as to why that request is reasonable; and
• seeking confirmation from those employees that they will work the public holiday, or their reason(s) as to why they refuse to work.

How can I determine whether a request to work a public holiday is reasonable?

The test for reasonableness is set out under s114(4) of the Fair Work Act and stipulates that the following must be taken into account:

(a) the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;

(b) the employee’s personal circumstances, including family responsibilities;

(c) whether the employee could reasonably expect that the employer might request work on the public holiday;

(d) 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;

(e) the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);

(f) the amount of notice in advance of the public holiday given by the employer when making the request;

(g) 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;

(h) any other relevant matter.

The circumstances surrounding the request and refusal will determine how much weight is given to each of the factors and it is possible for one or more of the factors to carry greater importance

It is important to remember that each case is different and will be considered on an individual basis, so if you would like advice on the reasonableness of your request of employees to work a public holiday you should seek legal advice.

What should an employer consider with regard to public holiday work?

The first thing an employer should consider is whether any request for employees to work on public holidays is a request instead of a direction.

The employer should also consider if the request is reasonable against the factors under s114 of the Fair Work Act so they can explain the reasonableness of the request against these factors.

Employers would be prudent to make requests well in advance of public holidays. This will provide adequate time to deal with any refusals by employees and to attempt to resolve any dispute (should it arise) prior to the public holiday in question.

Any employee who does work on a public holiday should be paid penalty rates under any of the following which are relevant to them:

• Modern Award;
• Enterprise Agreement;
• employment contract; and/or
• workplace policy.

If you are an employer who would like to understand how best to approach employees with a request to work a public holiday and how to deal with employees who refuse a request, our HR consultants in Cairns can assist.