Can you force employees to work on Boxing Day?

Q&A

Can you force employees to work on Boxing Day?

Can employees refuse to work on Boxing Day? Paul Munro explains.

Can employees refuse to work on Boxing Day? 

This question was recently sent to our Ask an Expert service.

Q Due to an increase in our trading operations, we plan to operate on Boxing Day. This decision mainly affects our retail staff, although workers in our warehouse will also be expected to work.

This is the first time we have required employees to work on Boxing Day. We are currently preparing rosters but are unsure of our rights if an employee refuses to work on the day.

Does an employee have a right to refuse a directive to work on Boxing Day? Our retail outlets are located in New South Wales.

A There is no unilateral right for an employer to direct an employee to work on a public holiday, such as Boxing Day. The right of an employee to refuse to work on Boxing Day is subject to the Fair Work Act and, in some cases, the relevant state or territory retail trading law.

Entitlements for work performed on a public holiday would be subject to the applicable modern award. The employer should consult with affected employees before holiday rosters are determined to avoid staffing problems on the holiday.

Fair Work Act – reasonable refusal to work

The Fair Work Act 2009 (s114) states that an employer may request an employee to work on a public holiday if the request is reasonable. In stating that, an employee must also provide a satisfactory reason for refusing an employer’s direction to work on a holiday.

The Fair Work Act lists a number of factors that an employer should take into account, although the relevance of the factors, and the weight given to them, will vary according to the particular circumstances. In some cases, a single factor will be of great importance and outweigh all others.

In determining whether an employer’s request is reasonable, or a refusal of a request is reasonable, the following must be taken into account:
  • the nature of the employer's workplace and the nature of the employee’s work
  • the employee's personal circumstances, including family responsibilities
  • whether the employee could reasonably expect the employer might request work on the public holiday
  • whether the employee is entitled to receive overtime or other penalty payments or other compensation that reflects the expectation to work on public holidays
  • the type of employment of the employee (eg whether full-time, part-time, casual, or shift work)
  • the amount of notice in advance of the public holiday given by the employer when making the request
  • the amount of notice given by the employee when refusing a request to work on a public holiday.

Example

The Explanatory Memorandum to the Fair Work Bill 2008 (para #.449-454) states that where an employee is employed in a workplace that requires a certain level of staffing on a public holiday, such as a public hospital, and has been given warning of the likelihood of being required to work on public holidays, a request by an employer to work may be considered reasonable.

On the other hand, an employee's refusal to work on a public holiday may be reasonable where, for example, the employee has notified the employer in advance that he/she will not be able to attend to work on a public holiday because of family commitments.

It would seem that the important factors regarding the reasonableness of an employer’s request to work on a public holiday will depend on:
  • the operational requirements of the business
  • the type of work performed by the employee, such as a maintenance employee
  • whether the employee was advised at recruitment that there may be a requirement to work public holidays, and
  • how much notice was given by the employer to the employee to work on the public holiday. 

Employee must provide reason for refusal

The Fair Work Commission has held that even if an employee has good reasons for refusing an employer’s request to work on a public holiday, if they do not explain those reasons to the employer, their refusal to work will not be reasonable.

In other words, an employee must explain their reasons for refusing to work on a public holiday. Refusal by an employee to work a public holiday would not, of itself, be a valid reason for dismissal. See: Pietraszek v Transpacific Industries Pty Ltd t/a Transpacific Cleanaway [2011] FWA 3698.

State trading laws

The Fair Work Act (s27) does not exclude certain state and territory laws, including those with respect to “business trading hours”.

While such state and territory laws mainly regulate opening and closing times for retail shops and retail trading on public holidays, there may be provisions which relate to the employment of retail workers.

For example, the Retail Trading Act 2008 [NSW] (s8A) states that “a shop is not required to be closed on Boxing Day if the shop is staffed only by persons who have freely elected to work on that day.”  This means it is an essential condition that staff must freely elect to work.

That is, an employee must volunteer to work without any coercion, harassment, threat or intimidation by a retailer. A formal complaint from an employee being compelled to work will be referred to inspectors for investigation and possible prosecution action.

The bottom line: While an employer does not have a unilateral right to direct an employee to work on a public holiday, there are factors which are taken into account when determining the reasonableness of an employer’s direction. An employee must provide a satisfactory reason for refusing to work on a holiday.

See also: Public holidays overview
 
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