Can You Make An Employee Work On A Public Holiday?

Public holidays are often your busiest trading days - or the days you’d prefer to close. Either way, you need to know where you stand legally before you roster staff.

Under Australian employment law, you can request that an employee works on a public holiday, but you generally can’t simply require it without following the rules.

In this guide, we’ll break down what the Fair Work framework says about working on public holidays, when a refusal is reasonable, how pay and penalty rates work, and the practical steps to stay compliant while keeping your business running smoothly.

What Does The Law Say About Working On Public Holidays?

The National Employment Standards (NES) give employees the right to be absent on a public holiday. As an employer, you can request that an employee works - but the request must be reasonable. The employee may refuse if your request is not reasonable or their refusal is reasonable.

In short, it’s a balanced test: you can ask, they can say no in certain circumstances, and you should consider the factors that make a request reasonable.

Key points to keep in mind:

• You must make a genuine request, not an automatic requirement. Rostering should invite acceptance or discussion, not compel the shift without room for refusal.
• If an employee refuses, assess whether your original request was reasonable and whether their refusal is reasonable. If both sides act reasonably, you can usually reach a workable solution.
• Modern awards, enterprise agreements or employment contracts can set additional rules for public holidays. Always check the applicable instrument for your team.

To keep your requests reasonable from the outset, be mindful of other Fair Work obligations that sit alongside public holiday rules - such as maximum weekly hours, minimum breaks between shifts, and lawful rostering practices.

When Is A Request Reasonable (And A Refusal Reasonable)?

Whether a public holiday request (or refusal) is reasonable depends on all the circumstances. In practice, consider the following factors together:

• The nature of your business and the work performed: Essential services or hospitality/retail may have a stronger case for public holiday work due to demand and customer expectations.
• Employee’s personal circumstances: Family responsibilities, religious observance or caring duties weigh in favour of a reasonable refusal.
• Whether the employee is casual or permanent: Many casual employees expect irregular hours, but that doesn’t erase the reasonableness test - it’s one factor among many.
• How much notice you gave: Last-minute requests are more likely to be unreasonable. Clear and early scheduling supports a reasonable request.
• What the applicable award or agreement says: Some instruments have specific rules for public holidays - check them before rostering.
• Compensation or incentives: Offering public holiday penalty rates or time off in lieu (where permitted) may support reasonableness.
• Workplace patterns: If an employee has consistently worked public holidays by agreement, that history can be relevant - but it’s not determinative.

A practical way to approach this is: ask (don’t require), give plenty of notice, consider personal circumstances, and show flexibility. Document your reasoning and the discussion so you can demonstrate you acted fairly and lawfully.

Good rostering discipline helps. Align your public holiday scheduling with your broader legal requirements for employee rostering, including rest breaks between shifts and advance notice obligations.

Do You Have To Pay Penalty Rates For Public Holidays?

Most awards and enterprise agreements require higher pay rates for work performed on public holidays. These public holiday penalty rates are designed to compensate employees for working on days of national significance.

What you’ll need to check:

• The applicable modern award or enterprise agreement: This sets the exact public holiday rate and any minimum engagement period (for example, a minimum number of hours to be paid).
• Whether the employee is casual or permanent: Penalty rates often apply on top of casual loadings, but the exact calculation depends on the instrument.
• Ordinary hours vs overtime: If public holiday work pushes an employee beyond ordinary hours, overtime rules may also apply.

If your employees are award-free, their Employment Agreement should set out how public holiday hours are compensated. Many employers mirror industry standards to remain competitive and fair.

For a refresher on how penalty rates work more broadly, it’s worth reviewing penalty rates in Australia and how they interact with weekend pay rates.

Can You Substitute A Public Holiday Or Give Time Off In Lieu?

There are two common ways to provide flexibility around public holidays: substituting the public holiday for another day, and offering time off in lieu (TOIL) where permitted.

Substituting A Public Holiday

Many awards and agreements allow you and an employee to agree to “substitute” a public holiday for another day. The substituted day is then treated as the public holiday for that employee’s entitlements.

Make sure substitution is documented, voluntary and consistent with any requirements in the applicable instrument or contract.

Time Off In Lieu

Some awards and enterprise agreements let you provide TOIL instead of paying public holiday penalty rates. This usually requires a written agreement that covers how TOIL is accrued and taken, time limits for taking it, and what happens if it isn’t taken.

If TOIL is an option for your workplace, ensure your policy aligns with the instrument and that employees understand the process. For a deeper dive on how to set this up correctly, see how time off in lieu arrangements work in practice.

Practical Steps For Rostering Public Holidays Legally

Getting public holiday compliance right is mostly about planning, communication and documentation. Here’s a practical approach you can adopt:

1) Plan Rosters Early And Invite Acceptance

Publish public holiday rosters with plenty of lead time. Phrase assignments as a request (not a demand), and provide a clear way to raise concerns or refusals. Early notice also helps you meet minimum notice for shift changes requirements under awards or agreements.

2) Check Awards, Agreements And Contracts

Confirm which modern award or enterprise agreement applies to each role, and what it says about public holidays, minimum engagements, and substitution/TOIL rules. If an employee is award-free, ensure your Employment Contract clearly addresses public holidays, penalty arrangements and rostering expectations.

3) Assess Reasonableness And Document It

When you request public holiday work, note the factors that make it reasonable (business needs, notice given, role requirements). If an employee refuses, consider their reasons and whether an alternative arrangement (swap, TOIL, different day) is available. Keep short written records of the conversation and the outcome.

4) Pay Correctly And On Time

Apply the correct public holiday penalty rates, minimum engagements, and overtime as required. If TOIL is used, follow the written agreement and your policy. Getting pay right is a key part of compliance and employee trust.

5) Safeguard Fatigue Management

Public holiday shifts often mean extended hours or late finishes. Cross-check your schedule against minimum break between shifts and maximum weekly hours limits to manage risk and remain compliant.

6) Use Clear Policies And Train Your Managers

A short policy on public holiday rostering and compensation helps standardise decisions, particularly across multiple locations. Brief managers on the “request vs require” standard so they invite acceptance, handle refusals fairly, and escalate complex cases early.

Frequently Asked Questions

Do Full-Time And Part-Time Employees Get Paid If They Don’t Work?

Yes, full-time and part-time employees are generally entitled to be absent on a public holiday and be paid their base rate for ordinary hours that would have been worked on that day. Casuals are typically unpaid if they don’t work, but must receive the correct penalties if they do.

Can I Close The Business On A Public Holiday?

Yes. If you shut on a public holiday, permanent employees are still usually entitled to their ordinary pay for the day if it would have been an ordinary working day for them. Award or agreement terms may specify additional rules.

Can A Casual Refuse A Public Holiday Shift?

Yes - the same reasonableness test applies. While casuals often accept irregular hours, a casual may reasonably refuse where personal circumstances or other factors make your request unreasonable in the circumstances. It’s best practice to build flexibility into your casual pool and, where possible, accommodate requests not to work on certain public holidays.

What If An Employee Repeatedly Refuses?

Start by reassessing reasonableness. If your requests are genuinely reasonable and the employee’s refusal appears unreasonable, seek advice before taking any employment action. Often, adjusting rosters, offering substitution or reaching a compromise solves the issue without escalation.

How Do Public Holiday Rates Interact With Weekends?

Public holiday penalties usually replace standard weekend penalties for that day, but always check the exact terms in the applicable instrument. If public holidays coincide with Sundays, for example, the specific award or agreement will set the correct rate. If you need a refresher, revisit how weekend pay rates and penalty rates are structured.

What Documents Should We Have In Place?

A strong paper trail helps you stay compliant and resolve misunderstandings quickly. Consider these documents and systems:

• Employment Contracts: Set expectations about rostering, public holiday work, and compensation for award-free staff; ensure consistency with the applicable instrument for award-covered staff. If you’re engaging new staff, a tailored Employment Contract is essential.
• Workplace Policies: A short policy on public holidays, rostering, TOIL and overtime helps managers apply the rules consistently.
• Rostering Procedures: A clear process for publishing rosters, inviting acceptance and managing refusals helps you meet your rostering obligations.
• TOIL Agreements: Use a simple written form (aligned with your instrument) for each TOIL arrangement so entitlements are tracked and taken correctly. Our overview of time off in lieu shows the key settings to lock in.
• Pay Guides: Document how you calculate public holiday, weekend and overtime penalties. Cross-check with your award or agreement and keep it updated.

If you’re unsure which award applies or how to draft terms that fit your operations, it’s worth speaking with an employment lawyer before holiday trading ramps up.

Key Takeaways

• You can request that an employee works on a public holiday, but the request must be reasonable, and an employee may reasonably refuse.
• Reasonableness is a multi-factor test - consider your business needs, the role, notice given, the employee’s personal circumstances, and what the award or agreement requires.
• Most awards and agreements require public holiday penalty rates, and some allow substitution of the holiday or time off in lieu by written agreement.
• Plan early, invite acceptance (don’t require), and document discussions and decisions to demonstrate compliance.
• Protect your business with clear Employment Contracts, practical policies, and rosters that respect minimum breaks and maximum hours.
• If in doubt about awards, rates or refusals, get tailored advice from an employment lawyer before the public holiday period begins.

If you’d like a consultation on managing public holiday work for your team, you can reach us at 1800 730 617 or team@sprintlaw.com.au for a free, no-obligations chat.