Q&A with Industrial Relations & Legal Adviser Malvin Khaira
Posted
Q: The Australia Day Public Holiday is approaching. Can I force an employee to work on Australia day?
A: No. You may not force an employee to work on a public holiday, however, you may request that an employee do so. Similarly, an employee may refuse a request to work on public holidays provided the refusal is reasonable. They, however, must provide an explanation of their reasons for refusal to the employer.
The question then arises, how does an employer determine what is a reasonable request to work and a reasonable refusal to work on a public holiday. Unfortunately, there is no conclusive answer to this, however, there are certain factors that the Fair Work Commission considers when determining reasonableness in this context.
An Employee’s right to public holiday stems from a number of sources, including the Fair Work Act 2009 (Cth) (FWA), the applicable Award and/or an Enterprise Agreement. s114 FWA provides employees with a right to public holidays. As mentioned above, you may request an employee work on a public holiday if the request is reasonable and similarly an employee may refuse to work where he/she has reasonable reasons to do so.
The factors that the Fair Work Commission considers when determining reasonableness includes but is not limited to the following:
1. The nature of the employer’s workplace and the nature of the work performed by the employer
For instance, if the employee is employed at a workplace that requires staffing over public holidays such as at an Airport or a Hospital and are aware they may be required to work over public holidays, then a request by an employer to work may be considered reasonable. There are other businesses that operates 365 days a year in order to meet contractual obligations hence necessitating work on weekends and public holidays. Where a request to work on a public holiday is made at such a workplace, the request is more likely to be found reasonable.
2. The employee’s personal circumstances, including family responsibilities
For instance, where the employee has made known to the employer prior to the public holiday that he or she will be unavailable due to other family priorities then a refusal of a request to work is more likely to be considered reasonable.
3. Whether the employee could reasonably expect that the employer might request work on the public holiday
For instance, If the employee at the time of accepting the job was made aware of a potential need to work on public holidays, then a refusal to work by the employee is likely less reasonable.
4. The Amount of notice given to the employee in advance of the public holiday when making the request
If a number of weeks’ notice in advance of the public holiday is given to the employee then the request is likely to be more reasonable.
5. 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
If the refusal to work on public holidays is provided well in advance of the public holiday then it is more likely to result in the refusal being reasonable given that the employer is more able to make alternative arrangements such as rostering someone else on that day.
Every situation is different, and it is not possible to provide comprehensive advice around what is considered reasonable when requesting or refusing to work on a public holiday, without a detailed factual understanding of the circumstances. This information is therefore meant to be general rather than specific and is not intended to be legal advice.
It is important to note that the above factors are not conclusive, and any one factor can have a larger bearing than others. However, whether or not employees have good reasons for their refusal to work, these reasons must be explained to the employer to be considered reasonable. Employers should consult with employees before holiday rosters are determined to avoid staffing problems around public holidays.
If you are an MBA ACT member and need assistance around public holiday work obligations, please contact our IR & Legal Adviser, Malvin Khaira at mkhaira@mba.org.au or at 6175 5900.
