Can staff be directed to work on a public holiday?
A March 2023 decision of the Federal Court has reaffirmed employees’ entitlement to a paid day off on a public holiday. It has also clarified s 114 of the Fair Work Act 2009 (Cth) (FWA) regarding how an employer can reasonably request staff to work on a public holiday, when an employee can reasonably refuse such a request, and the distinction between a request and a requirement.
On 28 March 2023, the Federal Court handed down its decision in CFMMEU v OS MCAP PTY LTD  FCAFC 51 (the Decision).
The employer, OS MCAP runs a coal mining operation at the Daunia Mine, near Moranbah in central Queensland. Around 85 employees were required to work on Christmas Day and Boxing Day 2019.
At first instance, Justice Rangiah of the Federal Court found in favour of OS MCAP. His Honour disagreed with the CFMMEU’s contention that there was a distinction between a request and a requirement for the purposes of section 114(2) of the FWA. Further, Rangiah J held that the employer’s requirement was ‘reasonable’ for the purposes of section 114(4). As a result, there had been no breach of section 44 of the FWA.
However, on appeal to the Full Court, the CFMMEU successfully argued that requiring employees to work on a public holiday was a contravention of the National Employment Standards (NES).
The Decision of the Full Bench held, inter alia, that:
- an employee is entitled to a paid day off for a public holiday;
- if an employer wishes for an employee to work on a public holiday, they must make a request to that effect;
- an employee may refuse that request if either:
- the request is unreasonable, or
- their refusal is reasonable;
- a request differs from a requirement in that there is opportunity to refuse; and
- the following are not considered to be requests:
- a contract providing that an employee may be called upon to work public holidays;
- a roster that includes public holidays, where the staff have not been given opportunity to refuse those hours prior to the final version being issued; and
- training materials that refer to a requirement to be available on weekends and public holidays.
The essence of the Decision was expressed by Justices Collier, Thomas and Raper at :
‘An employee is entitled to be absent from work on a public holiday, unless the exceptions under s 114(2)-(3) apply: An employer has “request[ed]” the employee to work and the request is reasonable (s 114(2), 3(a)) or the employee's refusal is not reasonable (s 114(3)(b)).’
Difference between a request and a requirement to work on a public holiday?
In the Decision, their Honours expressed the distinction between a request and a requirement in the following terms:
‘We are of the view that to read “request” as comprising a demand or making something obligatory is not consistent with what was intended by the legislation, namely that there is a choice: The employee may refuse an unreasonable request or, even though the request is reasonable, the individual circumstances of the employee may nonetheless allow the employee to refuse a reasonable request.’ 
Importantly, the decision makes it clear that a staff member will always retain the right of reasonable refusal, even where the terms of their contract, enterprise agreement or award foreshadow that they may be asked to work on public holidays.
In effect, an employer needs to give staff that choice by making a discrete request for each public holiday that arises. A ‘standing notice’ or ‘reasonable expectation’ will not suffice.
What is the meaning of ‘reasonable’ when refusing a request to work on a public holiday?
Section 114 of the FWA forms part of the NES. Sub-section 114(4) provides the following criteria for assessing reasonableness in relation to public holidays:
114 (4) In determining whether a request, or a refusal of a request, to work on a public holiday is reasonable, the following must be taken into account:
- the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
- the employee’s personal circumstances, including family responsibilities;
- whether the employee could reasonably expect that the employer might request work on the public holiday;
- whether the employee is entitled to receive overtime payments, penalty rates or other compensation for, or a level of remuneration that reflects an expectation of, work on the public holiday;
- the type of employment of the employee (for example, whether full‑time, part‑time, casual or shiftwork);
- the amount of notice in advance of the public holiday given by the employer when making the request;
- in relation to the refusal of a request—the amount of notice in advance of the public holiday given by the employee when refusing the request;
- any other relevant matter.
In the case of OS MCAP, the Full Court agreed with the CFMMEU that the ‘operational reasons’ provided by the employer were insufficient to make the employer’s requirement reasonable.
What if an employer cannot shutdown on public holidays?
There are many industries where full shutdown is not possible. For instance, emergency or frontline services. The Decision addresses this issue at :
‘Contrary to the conclusion of the primary judge, we do not consider this interpretation “skews” the balance against employers. An employer can ultimately require employees to work on public holidays who are involved in critical services or where it is desirable (although “not critical”) to remain open on public holidays in circumstances where the employer has satisfied the obligations imposed upon it under ss 114(2) and (3), namely, that it has made a request, that request is reasonable, and in circumstances where an employee's refusal is not reasonable (taking into account the factors in s 114(4)). There is no preclusion that exists of the kind contemplated by the primary judge.’
Guidance should be taken from the following paragraph of the Decision regarding the steps that an employer will need to take to ensure that they are seen to be making a request of staff, rather than imposing a requirement to work on a public holiday:
‘An employer is able to have a roster which includes public holidays. All that is required is that an employer ensures that employees understand either that the roster is in draft requesting those employees who have been allocated to the holiday work that they indicate whether they accept or refuse that allocation, or where a request is made before the roster is finalised. Similarly, a contract may contain a provision foreshadowing that the employees may be asked to work on public holidays and may be required where the request is reasonable and a refusal unreasonable.’ 
- the employer should make it clear that a roster that includes a public holiday is only a draft until staff have had a chance to review and refuse; and
- if there is a standing notice that employees may be called upon to work on a public holiday, staff should be aware that they still have the right to refuse (subject to the conditions above).
Remuneration for hours worked on a public holiday (overtime, penalties, TOIL etc.) will be as provided in the employment contract, enterprise agreement, or award.
Need help from an employment lawyer?
The Decision makes clear that the default position is that an employee will be entitled to a paid day off for a public holiday. On that basis, a staff member cannot be directed to work.
A standing requirement to work public holidays contained in a contract, enterprise agreement or award is likely to be viewed as an attempt to contract out of the NES and, on that basis, will be in breach of s 44 of the FWA.
However, the employer retains the right to make reasonable requests for staff to work on public holidays so long as employees are given the choice to decline. A request to work on a public holiday is more likely to be reasonable if the industry in question provides emergency or frontline services and plenty of notice is given.
The key takeaway is that there will always need to be open lines of communication around public holidays. An employer will need to make a request for each public holiday they wish staff to work, and they must be prepared not only to justify that request but to receive reasonable refusals.
If you’re having difficulties negotiating work requests or requirements on a public holiday, contact one of our award-winning employment lawyers for advice or assistance.
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This article relates to Australian law; either at a State or Federal level.
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