Request, don't require – How to ensure compliance when it comes to working on public holidays

There are four public holidays in March and April 2024. Will your business be needing employees to work on public holidays? If so, read on to ensure compliance when it comes to public holiday work.

Under s 114 of the Fair Work Act 2009 (Cth) (Fair Work Act), an employee is entitled to be absent from work on a public holiday.

An employer may request an employee to work on a public holiday if the request is reasonable.

Making a request

In Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] FCAFC 51, the Full Court held that a 'request' for the purposes of s 114 was to be interpreted in the ordinary sense, such that it can precipitate an employee's refusal to work a public holiday.

Requiring an employee to work a public holiday instead of making a request (in respect of which they may exercise a choice) will contravene s 114 (and therefore, s 44) of the Fair Work Act, for which penalties may be imposed.

An employer seeking to engage employee(s) to work on a public holiday must ensure that there is a request, and not a direction, to work and that the request is reasonable.

Practically, this may be done, for example, by:

1. circulating a draft roster to relevant employees whom the employer is requesting to work on a public holiday, along with an explanation as to why that request is reasonable; and
2. requesting that those employees either confirm that they will work that public holiday, or provide their reasons for refusing to work.

Whether a request is reasonable

In determining whether a request, or a refusal of a request, is reasonable the following factors under s 114(4) of the Fair Work Act must be taken into account:

Each of the factors and the weight to be given will vary according to the circumstances. In some cases, one factor will be of greater importance and outweigh the others.

In the recent decision of Australian Federated Union of Locomotive Employees v Aurizon Operations Ltd [2023] FWC 3473, a request was found to be reasonable, taking into account that:

1. Aurizon had made a request for certain employees to work a public holiday by providing the employees with a provisional roster, and providing employees with an opportunity to explain why they did not wish to work on the public holiday;
2. the nature of Aurizon's workplace and the nature of the work the relevant employees performed meant that work on public holidays was required to continue operations;
3. the relevant employees were engaged on shiftwork and allocated work through a roster and given that Aurizon operated continuously, it was foreseeable that public holiday work would be required;
4. under the relevant enterprise agreement, employees working on public holidays would be paid a penalty rate, plus any applicable shift loading or weekend work penalty; and
5. the relevant employees were provided the provisional roster six weeks in advance of the public holiday, and were provided with a response to their refusal four weeks before the public holiday.

Two employees refused the request, on the following grounds (at [17]-[18]):

"I would like to request to be rostered off on Christmas Day and Boxing Day public holidays under the new fair work agreement ruling of rights not to work on public holidays, due to these days being important family and religious days for myself and family. I believe this is fair and reasonable notice."

"...please make arrangements to have me rostered off duty on Xmas day the 25th of December 2023. As a Catholic Xmas is very [sic] important day for both myself and my family."

Deputy President Lake ultimately determined that the employees' refusal of Aurizon's request to work the public holidays was unreasonable and insufficient to be exempt from Aurizon's operational requirements for public holiday work. It was ordered that the employees were required to work on the public holiday as per Aurizon's request.

Next steps

When considering public holiday work, employers should:

1. ensure that any request for employees to work on public holidays is, exactly that - a request (and not a direction);
2. consider the reasonableness of the request against the s 114 factors and couple any request with an explanation as to why the request is a reasonable request;
3. ensure requests are made well in advance of public holidays to enable proper consideration of any reasons for an employee's refusal of the request, and to resolve any dispute prior to the relevant public holiday;
4. if employees are working on a public holiday, ensure compliance with any requirement to pay penalty rates under any Modern Award, Enterprise Agreement, employment contract or workplace policy; and
5. avoid taking any adverse action against an employee who exercises their workplace right to reasonably refuse a request to work a public holiday (or to make enquiries in this regard).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.