Can you force someone to work on Australia Day?

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Can you force someone to work on Australia Day?

Can you force employees to work the Australia Day public holiday? Paul Munro explains.

Can we insist that employees work on the Australia Day public holiday?

This question was recently sent to our Ask an Expert service.
 
Q We have rostered several employees to work on Australia Day. One employee has objected to working on the day, saying he has family activities planned for the holiday.

We realise employees have a right to public holidays, but does an employer have a right to direct employees to work on a public holiday? The relevant modern award provides penalty rates for public holiday work so it seems the award contemplates such a direction from the employer. 
 
Can employees refuse our directive to work on a public holiday?
 
A  An employer does not have a unilateral right to direct an employee to work on a public holiday. 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, the employee must also provide a satisfactory reason for refusing the employer’s direction to work on a holiday. 
 
The Fair Work Act lists a number of factors that the employer should take into account, although the relevance of the factors and the weight to be given will vary according to the particular circumstances. In some cases, a single factor will be of great importance and outweigh all others. 

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 or she will not be able to attend to work on a public holiday because of family commitments.
 
It would seem 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
  • how much notice was given by the employer to the employee to work on the public holiday.  

Reason for refusal

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

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 the employer’s direction. An employee must provide a satisfactory reason for refusing to work on a holiday. The employer should consult with employees before holiday rosters are determined to avoid staffing problems relating to a holiday.
 

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