Can an employer pressure an employee to work on a public holiday?

Public holidays are government set days or part-days where many businesses are closed for trade. Depending on which state or territory you live or work in, these holidays may fall at different times. Generally, an employee is entitled to be absent from work on a public holiday, however an employer can ask its employees to work if the request is reasonable.

There needs to be a legitimate reason for an employer to ask an employee to work on a public holiday and the employee may refuse if their reason for refusing is reasonable. In industries such as retail, healthcare, or hospitality, working on public holidays is common as businesses are likely to remain open, so a request is likely to be reasonable. By contrast, workers in many other industries would not expect to work on a public holiday and may not know their rights if asked.

A reasonable request will depend on:

• The nature of the business and the work performed by the employee
• The employee’s personal circumstances, such as family responsibilities
• Whether the employee is entitled to receive penalty rates, overtime payment or other compensation for working or if their salary otherwise compensates them for work on a public holiday
• Whether the employee is full-time, part-time, a casual or a shift worker
• The amount of notice given by the employer
• The amount of notice given by the employee when refusing the request

When requesting that an employee work on a public holiday, employers must consider all relevant circumstances, including those listed above. Some awards or enterprise agreements may also allow for a public holiday to be substituted for another day of the year. Substitutes must be agreed on by both the employer and employee and an employee must not be pressured by their employer to make a swap if they do not want to.

The Fair Work Act provides protections from adverse action taken against an employee for having, using, or seeking to use the workplace right to reasonably refuse to work on a public holiday. Adverse action could include an employer dismissing an employee for refusing to work on a public holiday, altering their position to the employee’s detriment, or discriminating between the employee and other employees.

In the case of Steven Pietraszek vs Transpacific Industry Pty Limited t/as Transpacific Cleanaway [2011] FWA 3698, Mr Pietraszek alleged he was unfairly dismissed for refusing to work on Christmas Day and Boxing Day. The nature of Transpacific Cleanaway’s business was to provide recycling and waste collection services seven days per week, 365 days per year. As a result, this necessitated some work on weekends and public holidays. Mr Pietraszek submitted that he has multiple grounds for refusal, including personal circumstances, the amount of time he provided regarding his refusal and other relevant factors within his employment. The Fair Work Commission found that Mr Pietraszek had valid grounds for refusing to work, so the dismissal was found to be unfair, and compensation was awarded.

When commencing new employment, it is a good idea to check your employment contract for terms concerning a requirement to work on public holidays. If such terms exist, ask your employer if they have a policy in place which confirms this expectation.

Disclaimer: This article should not be construed as legal advice and is not intended as such. If readers wish to obtain advice about anything contained in this article, they should speak with a lawyer and discuss their individual circumstances.