What are an employer’s rights to require an employee to work on a public holiday? What are the employee’s rights not to work?
Unfortunately, this is a question where “it depends”.
Under Section 114 of the FW Act 2009, an employee is generally entitled to be absent from his or her employment on a day or part-day that is a public holiday.
Where it gets more complex, is that an employer may request that an employee work on a public holiday if the request is reasonable. Further, the employee can only refuse the request when it is not reasonable, or where the employee’s refusal is reasonable.
Criteria for “Reasonable”
Section 114 (4) provides a full list of criteria that must be taken into account when determining if an employer’s request for the employee to work on a holiday, is reasonable. The list ranges from the nature of the employer’s business, the employee’s personal circumstances, type of employment, whether advance notice was provided, etc.
Each situation is different and needs to be assessed on a case by case basis. For example, there will be a range of considerations that need to be balanced in a fast food outlet where a roster is put out weeks in advance, but an employee requests 1 week before the public holiday that she wants the day off as all her family are coming into town to have a get together over the holiday period.
In determining if a request for the employee to work on the public holiday is reasonable, you would need to consider some of the following issues:
• The fast food outlet is a 364 day a year operation, where it is common knowledge that employees have to work public holidays regularly;
• Does the employee receive extra compensation for having to work on public holidays?
• How many public holidays has the employee already worked in the last 12 month period?
• Was the employee given advance notice, then requested at the last minute not to work?
• Is the employee a full-time shift worker whose regular shift pattern includes working on that public holiday?
• The employee’s personal circumstances, and the reason she is requesting not to work.
Depending on the answers to some of the questions above, it will be clearer whether the request is reasonable or not.