The general position in Australia around public holidays is that employees can take the day off and still get paid. 

However, in some cases, employees may choose to have employees rostered to work on public holidays. But is this actually legal?

The simple answer here is no, and the reasons for this position is set out in a recent decision handed down by the Federal Court. 

Let’s explore this below. 

Do Full Time Employees Get Paid For Public Holidays?

Before we get into the decision, it’s important to establish that full time employees are entitled to payment even during public holidays. 

But can employers make an employee work on a public holiday?

What Are The Implications Of The Federal Court’s Decision?

On 28 March 2023, the Federal Court’s decision regarding the case of Construction, Forestry, Maritime, Mining and Energy Union v OS MCAP Pty Ltd [2023] set a firm position around employees and public holidays. 

In the case above, OS MCAP was under a contractual obligation to their client (BMA) to provide their services ‘24 hours a day, 365 days a year’. To meet this requirement, they required certain employees to work during public holidays despite their requests for leave. 

The Court found that this requirement was not a ‘request’, and OS MCAP was therefore in breach of section 114 of the Fair Work Act

The key takeaway is that employees have a right to be absent from work on public holidays. If you wish for an employee to come into work, you need to make a request that is reasonable

Can An Employee Refuse To Work On A Public Holiday?

Yes, even where you make a reasonable request for employees to work on a public holiday, they still have the right to refuse

However, in the same way that your request must be reasonable, so too does their refusal. 

What This Decision Means For Your Business

As an employer, this decision can have significant effects on how you might usually run things. 

Firstly, it’s important to get a lawyer to review your contracts in case there are clauses that require employees to work during public holidays. These clauses will be in breach of the Fair Work Act which carry heavy penalties. 

Additionally, you must ensure that any requests you make for employees to come into work are reasonable. 

To be on the safe side, it’s best not to assume that an employee can work on a public holiday. We recommend that you make the request first to see whether they will be available. 

Need Help?

At Sprintlaw, our lawyers can review your legal documents to ensure they are both compliant with the relevant laws, and that they serve to protect your business’ interests. 

In light of this new decision, it’s important that your documents are updated and your internal processes are compliant also. 

If you would like a consultation on your employer obligations or contract review services, you can reach us at 1800 730 617 or for a free, no-obligations chat.

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