Rostering on Public Holidays

In a decision handed down on 28 March 2023 the Federal Court ruled that employers must consult with workers before rostering them to work on public holidays.

The law behind the ruling is not new, but this interpretation is.

The Fair Work Act says that an employee is entitled to be absent from work on a public holiday but “an employer may request an employee to work on a public holiday if the request is reasonable”. The case was about whether the employer’s roster was a “request” or something more. The court found that it was not just a request and was therefore a breach of the Fair Work Act.

The timing of the decision immediately before easter is troublesome, because it doesn’t leave employers with much time to react.

Fortunately, the court gave some very clear guidance about what is required to comply with the Act:

“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.”

It seems likely that this decision (and the changes it brings) will lead to greater consultation between employers and workers about rostering on public holidays, so it is worthwhile for workers and employers to know what the Act actually says about that discussion. Section 114 of the Fair Work Act provides that an employer can request that an employee work on a public holiday if the request is reasonable and that an employee can refuse to work if the refusal is reasonable. The section continues:

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:

1. the nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee;
2. the employee’s personal circumstances, including family responsibilities;
3. whether the employee could reasonably expect that the employer might request work on the public holiday;
4. 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;
5. the type of employment of the employee (for example, whether full-time, part-time, casual or shiftwork);
6. the amount of notice in advance of the public holiday given by the employer when making the request;
7. 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;
8. any other relevant matter.

If you have questions in relation to rostering or other employment matters, give our employment law team a call on 02 6650 7000.