jmhUnder the National Employment Standards (NES), employees have an entitlement to a paid day off on a public holiday unless it is reasonable to ask an employee to work. Many businesses remain open over public holidays and need employees to work. This can lead to confusion and disputes over whether or not it is reasonable to ask an employee to work on a public holiday.

Requests to work on a public holiday

The factors set out in the NES to determine the reasonableness of a request to work (or the reasonableness of a refusal to work) on a public holiday are:

  • the nature and operational requirements of the workplace
  • the type of work required to be performed
  • the employee’s personal circumstances (eg family responsibilities)
  • any reasonable expectation that public holiday work is required
  • entitlements to be compensated for working on the public holiday
  • the type of employment of the employee (ie full-time, part-time or casual)
  • the amount of advance notice provided to the employee to work on the public holiday, and
  • the amount of advance notice given by the employee if refusing to work on a public holiday.

What does this mean for employers?

Employers requiring employees to work on public holidays should:

  • consider the reasonableness of the request
  • provide as much notice as possible to avoid an employee claiming that the request was unreasonable, and also
  • consider any obligations that may arise under industrial instruments such as enterprise agreements or modern awards that regulate employees’ entitlements on public holidays

The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.

Click here for more information on Jessica Simmonds.