Can You Make Your Staff Work on Christmas? What the Law Says

In construction, unusual hours and shift work are common. As Christmas approaches, employers often ask, “Can we roster employees to work on Christmas Day?”

In 2023, the Full Federal Court answered this in Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd. The key message is that, you can’t require public holiday work unless you first request it, and give employees a genuine chance to agree to the request.

The Case

Mine-site workers were rostered to work Christmas Day and Boxing Day without being asked. The employer argued this was acceptable because public holiday work was part of the job. The Court examined s 114 of the Fair Work Act, which gives employees a right to be absent on public holidays. However, it also allows employers to request their employees to work, as long as the request is reasonable.

Reasonableness depends on factors such as:

• operational requirements
• the employee’s personal circumstances
• whether holiday work was reasonably expected
• penalty rates or compensation
• type of employment
• notice given by both parties

So, the issue was whether simply rostering employees amounted to a valid “request”.

The Decision

1. Employers must “request”, not “require”, public holiday work.

A roster alone is not a request. Section 114 requires a two-step process:
(a) the employer must request an employee to work on the public holiday;
(b) the employee may refuse if the request is unreasonable.

2. Employees must have a genuine ability to decline.

The request must be real, i.e. employees must be afforded the opportunity to either agree to work, or refuse if the request is unreasonable.

3. Employers can still direct employees to work if the direction is reasonable.

If an employee declines the request to work on a public holiday, you can still direct them to work, as long as that direction is considered reasonable under s 114.

4. Contracts and enterprise agreements don’t override this requirement.

Even if an employee’s contract, roster pattern, or enterprise agreement says they normally work public holidays, the employer must still ask first!

Lessons Learned

• You can roster employees to work on Christmas and other public holidays. You just need to make clear the shift is a request, not an automatic requirement.
• Give employees a real opportunity to respond. Provide notice, consider circumstances, and avoid assuming availability just because you have rostered it in advance.
• Keep records. Note communications, rosters, refusals and reasoning so you can demonstrate that a genuine request was made, and that all required steps have been taken to afford the employee an opportunity to respond.
• Avoid wording that removes choice.

Contact Us

If you’re unsure or need guidance, MBA ACT’s Workplace Relations Team can help. Call 02 6175 5900 or email workplace@mba.org.au