What you need to know before requesting an employee to work on a public holiday

What you need to know before requesting an employee to work on a public holiday.

Under the National Employment Standards (NES), an employee is entitled to be absent on a public holiday and to be paid for any of the employee’s ordinary working hours which fall on the holiday. However many businesses want to continue operations over public holidays, and this requires at least some employees attend work.

The entitlement for an employee to be absent on a public is subject to an employer’s right to request that an employee work on a public holiday.

Requesting employees to work on a public holiday

Under the NES, an employer may ‘request’ an employee to work on a particular public holiday. Requesting is not the same as simply requiring an employee to work. The most important difference between a request and a requirement is that a ‘request’ suggests an employee will have the opportunity for discussion and negotiation.  The NES contain a two-part process for requesting an employee work on a public holiday:

1. There must be a reasonable request by the employer to work; and
2. The employee must not reasonably refuse the request.

Requesting an employee to work could take various forms. It could be a call for volunteers to work, approaching individual employees to ask them to work, or presenting a draft roster to employees that allows an opportunity to refuse the rostered hours.

Once an employee has been given a reasonable request to work, they can only refuse the request if their refusal is reasonable.

If an employee has been reasonably requested to work on a public holiday, and the employee does not have a reasonable basis to refuse the request, the employee may still be required to work.

Factors relevant in considering whether a request or refusal is reasonable

Whether a request or a refusal is reasonable will depend on the individual circumstances of the employee and the business needs of the employer. The NES contain the following non-exhaustive list of matters that must be considered:

• the nature of the employer's workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
• the employee's personal circumstances, including family responsibilities;
• whether the employee could reasonably expect that the employer might request work on the public holiday;
• 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;
• the type of employment of the employee (for example, whether full‑time, part‑time, casual or shiftwork);
• the amount of notice in advance of the public holiday given by the employer when making the request;
• 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; and
• any other relevant factors.

The Explanatory Memorandum to the Fair Work Bill 2008 provides some guidance on the operation of these factors:

“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.

For example, 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, e.g., the employee has notified the employer in advance that she or he will not be able to work on the public holiday because of family commitments.”

Tips for employers when requesting an employee to work a public holiday

When planning for work on a public holiday, it is recommended that employers:

• Plan as far in advance as possible for coverage of public holidays to allow enough time to negotiate and discuss requests to work on a public holiday with employees
• Ensure that there are clear, reasonable grounds for the request to work on the public holiday
• Put any requests for an employee to work on a public holiday in writing that mentions the specific holiday
• Highlight any applicable penalty rates in a modern award or enterprise agreement for working on a public holiday as an incentive
• Provide employees with the opportunity to accept or refuse a request to work and ask for the reasons for the refusal so that they can be considered
• If an employee refuses the request to work, carefully consider the reasons for the refusal to determine whether there is a reasonable basis to refuse.

To help with covering the above points employers may like to implement an appropriate policy that deals with requests to work on public holidays and standardises procedures.

Further information

For assistance with your workplace matters, Members of Ai Group can contact us or call our Workplace Advice Line on 1300 55 66 77 for further information.