Public holidays are a cornerstone of Australia’s workplace relations framework, enshrined in the National Employment Standards under the Fair Work Act. While many businesses operate year-round, employers must navigate the delicate balance between operational needs and employees’ statutory rights. Recent court decisions have clarified these obligations and imposed significant penalties for non-compliance.

This article explains what a ‘request’ is under the Fair Work Act, practical steps for compliant rostering, and lessons from the recent Federal Court rulings.

The legal framework for working on public holidays

Under the Fair Work Act, employees are entitled to be absent from work on a public holiday. However:

• An employer may request an employee to work on a public holiday if the request is reasonable,
• The employee may refuse the request if the request is not reasonable; or the employee’s refusal is reasonable.

The Fair Work Act outlines factors to determine reasonableness, including:

• Operational requirements of the business,
• The employee’s personal circumstances (e.g., family responsibilities),
• Whether the employee could reasonably expect such a request,
• Remuneration arrangements (e.g., penalty rates or inclusive salaries),
• Notice given by both employer and employee, and
• Any other relevant matter.

What does a ‘request’ mean?

Recently, the Full Federal Court found that:

A ‘request’ connotes its ordinary meaning: an employer may make a request in the form of a question, leaving the employee with a genuine choice to agree or refuse.

Simply rostering employees on a public holiday without consultation is not a request, it is a requirement, which breaches the National Employment Standards. Even if employment contracts state that employees “may be required” to work public holidays, employers must still ask and allow reasonable refusal on reasonable grounds.

What constitutes a reasonable request under the Fair Work Act?

Determining whether a request to work on a public holiday is reasonable requires a balanced assessment of several factors. These factors are not exhaustive, but they provide a framework for employers to make fair and lawful decisions.

1. Operational necessity 

If the nature of the business requires continuous operation, such as hospitals, emergency services, utilities, or mining, requests to work on public holidays are more likely to be considered reasonable. For example: A hospital requesting nurses to work on Christmas Day to maintain patient care is reasonable. Additionally, a retail store requesting staff for Boxing Day sales may also be reasonable, given industry norms.

2. Employee expectations

Consider whether the employee could reasonably expect such a request based on their role, industry, and employment agreement. For example: employees in hospitality or aviation typically expect public holiday work and an office-based administrative employee in a standard Monday – Friday role would not reasonably expect to work on Christmas Day.

3. Compensation

The level of remuneration matters. If employees receive penalty rates or an annual salary that explicitly includes public holiday work, this supports the reasonableness of the request. Importantly, however, as the recent case law has confirmed, inclusive pay rates do not remove the employee’s right to refuse.

 4. Notice period 

The more notice an employer provides, the more reasonable the request becomes. Short-notice requests are less likely to be reasonable unless there are exceptional circumstances that require employees to attend work.

5. Personal circumstances

Employers must consider individual circumstances such as family responsibilities, religious observance, or health issues. For example: a single parent who cannot secure childcare for Christmas Day has reasonable grounds to refuse.

Lessons from a recent case regarding public holiday requests

In a recent case, a labour hire business providing services to a large mining business required 85 employees to work on Christmas Day and Boxing Day in 2019 without offering a choice. The Court found this deprived employees of the opportunity to refuse, causing non-economic loss (e.g., missing family events). Compensation was recently award to employees affected by the lack of choice, ranging from $800 to $2,400 per employee. The business was also awarded a $15,000 penalty for breaching the Fair Work Act.

Central to the case was that while some employees were needed to work, the process for determining who would work did not involve a request, where any refusals to work could be considered as to their reasonableness before those requests were rejected. In this case, all employees were salaried, and the court found that even if employees are paid salaries that include public holiday work, the right to refuse remains.

Practical guidance for employers when requesting employees to work on public holidays

To comply with the legislation and avoid costly breaches, it is recommended employers follow these steps:

Step 1: Start with presumption of absence 

Assume employees will be absent on public holidays unless they agree to work.

Step 2: Make a genuine request 

• Use clear language: “Would you be willing to work on (public holiday)?”
• Avoid language implying obligation.

Step 3: Provide adequate notice 

• Make requests well in advance (weeks, not days).
• Explain operational reasons for the request.

Step 4: Allow and consider refusals 

• Employees can refuse if the request is unreasonable or their refusal is reasonable.
• Assess refusals against the factors outlined in the Fair Work Act (e.g., family responsibilities, notice given).

Step 5: Document the process 

• Keep records of requests, responses, and reasons for any refusals.
• Update rosters only after confirming employee agreement.

 Step 6: Review contracts and policies 

• Remove clauses that imply mandatory public holiday work.
• Include language that reflects the right to refuse.

The business risks of non-compliance with National Employment Standards 

Failing to comply with public holiday requirements of the Fair Work Act can expose employers to significant consequences. Civil penalties for corporations can reach up to $82,500 per breach, and courts may award compensation to employees for both economic and non-economic loss, such as missed family events or emotional distress.

Beyond financial liability, businesses risk reputational damage, strained employee relations, and potential union disputes. To mitigate these risks, employers should train managers on compliance obligations and audit rostering systems well before major public holidays to ensure requests – not requirements – are being made.

How Business Chamber Queensland can help

Navigating compliance with the Fair Work Act can be complex, especially when balancing operational needs with employee rights. Business Chamber Queensland offers practical support for employers, including:

• Expert advice on interpreting public holiday obligations and implementing compliant rostering practices,
• Template policies and communication tools for making genuine requests to employees,
• Training and resources for managers to handle refusals and assess reasonableness, and
• Advocacy and updates on legislative changes and case law developments.

By contacting the Workplace Relations Team at Business Chamber Queensland, employers can reduce risk, maintain positive employee relations, and ensure their business meets legal standards.